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Modern Political Institutions 



Modern 
Political Institutions 



By 
Simeon E.' Baldwin, LL.D, 

President of the American Social Science Association 

formerly President of the American Bar Association and of 

the New Haven Colony Historical Society 



Boston 

Little, Brown, and Company 

1898 



^ 



Copyright, 1898, 
By Simeon E. Baldwin. 



All rights reserved. 



' X .1-5 5 




TWO COPIES RECEIVFO. 

Hittbetsttg i^wss: 
John Wilson and Son, Cambridge, U.S.A. 



^898. 



TO 



WILLIAM KNEELAND TOWNSEND, D.C.L. 

DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT, 
PHELPS PROFESSOR OF LAW IN THE YALE LAW SCHOOL, 

ONCE MY PUPIL, 
LONG MY ASSOCIATE, 
ALWAYS MY FRIEND, 

THIS WORK IS DEDICATED. 



V 



CONTENTS. 



Chapter Page 

I. Introduction , i 

II. The Centenary of Modern Government . 6 

III. The First Century's Changes in our State 

Constitutions 45 

IV. Absolute Power, an American Institution 80 
V. The Exemption of the Accused from Exam- 
ination IN Criminal Proceedings . . . 117 

VI. Freedom of Incorporation 141 

VII. American Jurisprudence 239 

VI 1 1. The Decadence of the Legal Fiction . . 266 
IX. The Recognition of Habitual Criminals 

AS A Class to be treated by itself . . 290 
X. The Defence by the State of Suits attack- 
ing Testamentary Charities 316 

XL Salaries for Members of the Legislature 322 
XII. Permanent Courts of International Arbi- 
tration ... 341 

XIII, The Monroe Doctrine in 1898 359 

Index . . , . , , . . . . 369 



Modern Political Institutions 

9 

CHAPTER I 

INTRODUCTION 

MODERN history, as that term is commonly 
used, may be said to date from the first pub- 
lication of printed books. Modern politics can hardly 
be said to have begun to shape themselves until after 
the Protestant Reformation, nor to have assumed any- 
thing like definite and settled form before the middle 
of the eighteenth century. Modern political institu- 
tions are of still later growth. Political history is the 
tree from which they branch. Many a shoot is put 
forth in the spring-time of a nation, to wither and 
perish. The work of natural selection is nowhere so 
unremitting and remorseless as in the development 
of processes of government. The Puritans and the 
Commonwealth brought no lack of new political the- 
ories before the people of England and of New Eng- 
land. Many were tried, but few chosen. The French 
philosophers of the eighteenth century did as much 
for their countrymen, and the revolution, which they 
brought on, winnowed their work, and scattered most 
of it to the winds. Their seeds of socialism were 
blown over Europe, and have found perhaps the most 
friendly soil among the Germans, but from the coun- 

I 



2 INTRODUCTION 

ter spirit of imperialism with which they must con- 
tend, what root they have taken there is for the most 
part of a sentimental and personal, rather than a 
practical and national description. And where any 
new principle of legislation or jurisprudence has been 
fairly adopted by any nation, it cannot assume an 
institutional character until the generation by which 
it was adopted has passed away. 

Political institutions rest on popular assent. They 
must have been tested by long use, and not found 
wanting. They must seem part of the natural order 
of things to those whom they affect; and nothing 
seems natural to any man into which, as part of his 
earliest surroundings, he was not born and bred. 
Such there are, native to the nineteenth century. It 
came into existence when they were already estab- 
lished, and it accepted them, if not without a question, 
yet at least with the presumption in their favor. It 
has added to them others, akin in character, and to 
the second and third generation of men which it has 
produced, these too have been familiar and cherished 
from earliest childhood. 

It is of institutions of our own time, institutions 
which became such by the recognition and approval 
of our own century, or are contending for that of 
the twentieth, that this volume is designed to speak. 
And what, taking the term in this sense, are the chief 
among modern political institutions? 

Any answer that can be given must be largely a 
matter of individual opinion. I shall venture to state 
them, as they appear to me, in the order of their 
importance. 



INTRODUCTION 3 

The foundation of all government on the consent 
of a majority of the people. 

Religious liberty. 

The written constitution as the supreme law. 

The protection by law of the individual against the 
State. 

The protection by law of the individual against 
himself. 

The combination of political absolutism with 
democracy. 

The secret ballot. 

Simpler and surer methods of legal procedure. 

Freedom of incorporation under general laws. 

Minority representation in office. 

The regulation of succession to the dead in the 
interest of the State. 

International arbitration. 

To these I would add, for the United States, the 
Monroe Doctrine. 

Political institutions come unheralded and unnamed. 
They defy close classification. It is hard even to de- 
fine what manner of thing they are.^ A law may 

1 One may be warned against the attempt by the definition of a 
legal institution recently essayed by a scholarly writer on the law of 
Corporations, in the following words : — 

" The term legal institutions connotes a body of legal rules in their 
manifestation in legal relations between persons of whom certain 
correlated conditions of fact are predicable." (Taylor on Corpora- 
tions, § 24.) 

The hardest things to define are, happily, those which are so well 
understood that definition is unnecessary, except as a scholastic exer- 
cise. I once spent towards half a day with two friends in discussing 
the proper definition of " a stone." We failed to frame any that could 
pretend to exactitude, but nevertheless, in common with everybody 



4 INTRODUCTION 

serve as their starting-point, but it can be nothing 
more. That only can be called an institution which 
has fastened itself upon the community, and sunk its 
hold deep into the heart and life of the people. No 
institution can be called great which has not thus be- 
come a part of the political conceptions and existence 
of more lands than one. In the brief list which has 
been given, there may be some which have less right 
to recognition than others that will occur to the 
thoughtful reader. There are some which loom up 
more boldly before the American than they may be- 
fore the European. I believe, however, none have 
been included which do not fairly belong to the do- 
main of the universal in modern state-craft. Each 
but the last has already been transplanted far, and 
each is of a kind to root in any soil. 

Of the dozen which have been named, there are 
several of which little will be said. These are the 
best and most famihar. They speak for themselves ; 
and more consideration has seemed due to those 
which appear open to just criticism, or are the growth 
of comparatively recent years. 

Several of the chapters which follow treat of insti- 
tutions which I had made, in previous years, the sub- 
ject of public addresses, and my views are often 
expressed in the language employed on those occa- 
sions. I am sensible that such words may have a 
warmth of tone that seems less suited to the printed 
page than to the platform, but my apology must be 
that I feel warmly, now, as I did then, what to 

else we all knew very well when to use the word, and what was the 
appearance of its subject. 



INTRODUCTION 5 

Americans is the national importance of the theme. 
Unity of social policy, uniformity of statute law and 
judicial procedure, solidarity of national beliefs, — 
these are what the people of the United States must 
put before themselves as the ideals to be striven for. 
Their ultimate fulfilment has been made possible by 
the civil war that swept away forever what had made 
till then the great difference between the Northern 
and the Southern States, and brought in the new 
nation. It is hard not to be declamatory when one 
speaks in earnest, with such aims in view. 



CHAPTER II 

THE CENTENARY OF MODERN GOVERNMENT^ 
1789-1889 

THE closing quarter of the nineteenth century 
came crowded with great anniversaries. A 
long series of American centennials ended with that 
of the voyage which first really added the new world 
to the old. England in 1888 commemorated the 
peaceful revolution which set William of Orange on 
her throne, and France a year later was on fire with 
the recollections of the fiercer struggle that re-created 
her institutions. 

But among all these centennial years that of 1889 
stood out the first, because it had more than a na- 
tional significance. It closed the centenary of mod- 
ern government. 

Modern languages, modern literature, with its spirit 
of free inquiry, modern civilization and discovery, 
bringing in powers and necessities unknown before, 
had all given their new life to society before Europe 
began to demand political freedom. It was the in- 
capacity of a highly civilized society, merely as such, 
to satisfy the human soul, that drove men to a new 

1 In preparing this chapter, free use lias been made of the annual 
address before the American Bar Association delivered by the author 
at its meeting in Chicago, August 29, 1889. 



MODERN GOVERNMENT 7 

opening for their energies in public life and in the 
public good. James Wilson, in the Convention by 
which Pennsylvania ratified our national Constitution, 
declared that the science of government seemed yet 
to be almost in its state of infancy. It was not be- 
cause mankind were unfamiliar with the different 
forms governments may assume, or the different ends 
they may serve. It was known that they might be 
constituted simply for the good of the governed and 
by their consent. We had had free constitutional 
commonwealths on our own soil since the days of 
the Puritans, the sturdy outgrowth of the life of a 
liberty-loving people. But those colonial republics, 
such as Connecticut and Rhode Island, had nothing 
in them of the nation. If, for a few years, they 
claimed a kind of autonomy, it was soon gladly ex- 
changed for a chartered dependence on the British 
crown. 

In Europe there had been democracies and repub- 
lics through half the history of the human race, but 
which of them deserved the name or earned the place 
of a constitutional government? England, if any. 
England had tried and executed one king, and had 
driven another from her throne a hundred years 
before the Federal Constitution was adopted; but 
England was still a monarchy, supported by an 
hereditary aristocracy and a corruptible and cor- 
rupted Commons, and limited by nothing stronger 
than traditions, as they might be interpreted by 
judges appointed by the crown. 

Frederick Robertson said, fifty years ago, that he 
would close his Bible forever if he did not look for 



8 THE CENTENARY OF 

better times for England — times when merit should 
find its level ; when worth should be interpreted by 
what a man is, and not by what he has, nor by what 
his relations have been. 

The Declaration of Independence brought in such 
times to America. If for the next quarter of a cen- 
tury there lingered too much deference for distinc- 
tions of birth, if for the last quarter of a century 
there has been growing up a new power of property 
to give the rich too much of public consideration, 
these tendencies, at most, have been too slight to 
affect the main current of American life. It has 
swept on towards a true liberty, equality, fraternity; 
truer than has ever yet come to the great nation where 
first those words were linked together, — because she 
sought them by the path of destruction. She was 
driven by a sad history to seek them there. But to 
American soil they had been borne by friendly hands 
a century before. "The Mayflower" brought with her 
more than her company of Pilgrims. 

" Laws, Freedom, Truth, and Faith in God 
Came with those exiles o'er the waves." 

And the spirit of Puritanism was nobler than Puri- 
tanism. They " builded better than they knew." It 
may be that the spirit of New England Puritanism was 
nobler than the spirit of Puritanism in the land they 
left. It looks so, as we review the history of their 
century, and see England turn so sharply from the 
austere simplicity of the Commonwealth to the gay 
license that came in with Charles the Second. No 
such revulsion of pubhc feeling marked the return 
of the Stuarts in the American colonies. No man 



MODERN GOVERNMENT 9 

here had been acting a part. Institutions had been 
founded on ideas, not on military successes or politi- 
cal triumphs. Those ideas, no doubt, fell short of 
the ideals of the Americans of those days, as they fall 
short of ours; but their direction was right. They 
heralded the approach of modern government. For 
the first beginnings of its actual, its acted life, we look 
to America; for the first beginnings of its philosophy, 
we look to France. 

France was to the statesmen of our Revolution what 
Greece in her days of greatness was to early Rome, 
the source of intellectual and political inspiration. 
They looked to England for precedents, to France 
for principles. The same year ^ had given to the 
world the studies of Pothier and DAguesseau in 
Roman law, and of Montesquieu on the spirit of laws 
in general. In the youth of Jefferson and Adams, of 
Madison and Hamilton, Montesquieu's definitions of 
jurisprudence, his rule for the threefold division of 
power, his limitation of republican government to 
small States, were the talk of the day. 

France and America were both preparing, though 
they hardly knew it, to put these philosophies to a 
test. 

The two countries had before them, each, a very 
difterent task. Both were to reform their political 
institutions. But France had also to reform, to re- 
adjust, to re-constitute, the relations of her people to 
each other. 

The States General was a gathering of classes 
around a sovereign. King, nobles, clergy, commons 
1 1748. 



lo THE CENTENARY OF 

met to work some unknown, yet inevitable change in 
their mutual attitude. The law might thenceforth 
make all commons, all sovereigns; but generations 
must pass before such a law could be a living thing. 
When a society is re-constructed from turret to 
foundation-stone, by some fiat of legislation, make it 
what you will, and it remains still but a castle in the 
air, till long years have made men used to their new 
conditions. Then first will liberty, if it was gained, 
become a real possession, because then only will it be 
known for what it is. 

No such issue lay before the American people 
when our States General — the representatives of 
their thirteen free commonwealths — met at Phila- 
delphia in 1787. There were no hereditary privileges 
to attack, no absolute power to check, no classes to 
harmonize. 

It was two years later that the people of France, 
represented in a National Assembly, published their 
memorable Declaration of the Rights of Man. 

The States General, out of which that Assembly 
sprang, had been convoked for the first time for a 
century and a half. There is something majestic in 
the gathering of such a body, to be called into exist- 
ence only at vast and unknown intervals, on some 
great emergency of State. So men felt, whatever 
their religious faith, when the Church of Rome 
brought together, in 1870, at the Vatican, the 
first council of her prelates throughout the world 
that had met since that assembled at Trent three 
hundred years before, to stay the progress of the 
Protestant Reformation. So it was when the dele- 



MODERN GOVERNMENT ii 

gates of the American people, for the first and last 
time met in convention in 1787, to frame a Constitu- 
tion that would perpetuate their union. Such an 
assembly, with its far-reaching powers, untried by 
use, may precipitate or it may prevent a revolution. 

When President Harrison, in 1889, stood in New 
York, on the spot where, under his great predecessor, 
the first true government of the United States began, 
to celebrate the close of its first century, no memories 
were recalled but those of peace. But when, a week 
later. President Carnot, at Versailles, met the legis- 
lature of the French Republic to commemorate the 
anniversary of the opening of the States General, no 
one could forget the reign of terror that had so 
soon followed the reign of despotism. The States 
General had met in the beginning of the seventeenth 
century. They met next at the end of the eighteenth. 
During that long stretch of time France had had no 
government but the king. While Virginia was form- 
ing her House of Burgesses that brought representa- 
tive government into America; while the Puritans 
were constituting Christian commonwealths in New 
England ; while all the English colonies on this conti- 
nent were alike learning the true maxims of civil 
liberty; while the leaders of our Revolution were 
growing into statesmen by slow experience, — French- 
men could know the principles of politics only by 
study of books, or by observation in foreign lands. 
We cannot wonder, then, that France, in 1789, felt that 
as for her civil institutions she had nothing to pre- 
serve ; that all were bad, and that to abolish all was 
her first duty. 



12 THE CENTENARY OF 

In his commemorative address, on the occasion I 
have just named, President Carnot declared that this 
meeting of the States General created a new era in 
history, and founded modern society. 

It is a bold claim for any people to make that by 
one national event they have changed the current of 
human history. It has been made by Americans for 
the social compact signed upon the " Mayflower ; " for 
the early Constitution of Connecticut; for the Decla- 
ration of Independence; for the formation of the 
Federal Constitution. But the real, unsolved problem 
of government, in 1789, was to make and keep a great 
people free ; not any infant colony of Plymouth or 
Connecticut; nor any petty republic of Attica or San 
Marino; not even any cluster of States, bound 
together while fighting for independence ; but a great 
people, spread over a great territory. 

The United States of 1789 rested on a Constitution 
framed two years before, subversive and destructive of 
an earlier Constitution agreed to as perpetual ; and of 
our thirteen States two had deliberately refused to ac- 
cept the second. To the National Assembly of France, 
as to the ministry of Great Britain, it seemed, in 1789, 
that the American experiment had already failed. 

But modern government was not to be compassed 
in a day. For one thing it needed a revival of that 
spirit of national patriotism that had been dead or 
sleeping since the days of the Roman republic. 

Patriotism had been the keystone of virtue to the 
ancient world. It had glorified with immortality the 
pass of Thermopylae, and made men deem a few 
sprigs of laurel or a street procession the most pre- 



MODERN GOVERNMENT 13 

cious thing in life. But from the day that Brutus 
trampled on human love, for love of country, to the 
day when the dagger of political assassination re- 
appeared in Europe, in the hands of a woman, and 
Charlotte Corday slew one of the new Caesars of new- 
born France, the very word " patriotism " had gone out 
of the speech of men, and almost out of the thought 
of poets. Loyalty had usurped its place: the bond 
to law, not to country; to your king, your feudal lord, 
not to your fellow-citizens ; to the Church universal,, 
perhaps, not to the altars of your own community. 

" Patriotism," said Johnson, after the American 
Revolution had done its work, " is the last refuge of 
a scoundrel." " Patriotism," wrote Lessing a few 
years before, " is, at the highest, a heroic weakness 
which I am very glad to be without." The world 
had been without it since the first century of the 
Christian era. It fell at Rome when free government 
fell. It found no help in the Christian Church. That 
had for its purpose the submission of all nations to a 
common faith, and it strove for a thousand years 
to achieve it by subordinating civil to ecclesiastical 
authority. The spirit of individualism arose in pro- 
test, and put manhood before citizenship. The middle 
ages rolled away; the Renaissance was followed by 
the Reformation ; the Stuarts yielded to the Com- 
monwealth, the Commonwealth to the Stuarts ; the 
new world was peopled with European colonies ; and 
still the life of modern society was unconceived. 

The light broke when French philosophers asserted 
that correlation of forces in political power by which 
a true socialism complements a true individualism; 



14 THE CENTENARY OF 

by which the authority, which must always be admin- 
istered by a few, shall be constituted and controlled 
by the many; by which, as Mill has said, "the im- 
portance of the masses becomes constantly greater; 
that of individuals, less." 

France has made the " Ideas of Eighty-nine " a 
familiar phrase, but they were only the acted expres- 
sion of ideas struck out on the same soil a generation 
before. And modern government has risen out of 
them but slowly into form. The key with which the 
spirit of our time unlocks all mysteries, the law of 
evolution, life-giving and life-lifting, has done its work. 
In institutions, as in animated nature, there is the 
struggle for existence, and the survival of those fittest 
to survive. 

And what, as we review the century, has been 
achieved, what retained, and what discarded? How 
has socialism been blended with individualism? What 
new ends have been proposed for legislation; what 
new immunities secured ; what new chapter of liberty 
opened? 

We must answer, first, that modern government 
does not concern itself only with the material well- 
being of the community. Magna Charta is no more 
its measure than is the Decalogue the measure of 
Christianity. The right to personal security, to prop- 
erty, to trial by one's peers, to tax one's self, — to 
establish these was the ultimate end of ancient 
government. Modern government retains them all, 
but adds : the right of equality before the law, and 
in the law ; the duty in civil matters to ignore dis- 
tinctions of religion; the duty of spreading educa- 



MODERN GOVERNMENT 15 

tion, information, intelligence at public cost; the 
right of labor to protection, at the expense of capi- 
tal, and in the interest of humanity. 

If I were to say which of these things was in the 
highest sense the fruit of our own century, I should 
name religious liberty. 

Nowhere, until the last part of the eighteenth cen- 
tury, had the State been kept totally separate from 
the institutions of religion. The original beginning 
of human society, in the family, the clan, the tribe, 
made the patriarch also the priest. The household 
gods were peculiar to the household; the national 
gods to the nation. Religion was a part of patriot- 
ism. Rulers might change; kings might give place 
to republican magistrates ; but the national deities, 
the national worship, would remain the same. Pro 
aris et pro focis was the watchword of war. 

Christianity came, and found the world subject to 
this law. But the spirit of Christianity was universal, 
catholic, not national. Its kingdom was not of this 
world. As, however, its doctrines spread, and as 
some of them began to be but half understood by 
those who taught them, government turned to it for 
aid. It became a part of the imperial system. When 
that fell, it conquered the conquerors, and for fourteen 
hundred years was the stay of every civilized govern- 
ment in Europe and America. 

The religious liberty for which the Puritans crossed 
the sea was simply liberty to make their form of 
religion the law of a new community. Rhode Island, 
with her utmost toleration, allowed no Roman 



1 6 THE CENTENARY OF 

Catholic in public office until long after the Declara- 
tion of Independence.^ In Protestant Europe, as in 
Catholic Europe, the union of Church and State 
remained unbroken. Men had risen up against the 
tyranny of ecclesiastical power; men had pulled 
kings from their thrones and set up others, or set up 
none. The same struggle against unjust government 
had sometimes been shared by those who attacked 
the Church and those who attacked the State. The 
same leaders might indeed attack both, but they 
seldom attacked or questioned the union of both. In 
England the Puritans fought against episcopal, the 
Republicans against royal tyranny; but both were 
ready to bind the Commonwealth to another form of 
national religion. 

A State church had, no doubt, been long the scorn 
of atheists and indififerentists ; but it endured until 
religion itself rose to the level of rejecting it; until 
Christianity came to see and teach that there are two 
worlds about us : the world we live in knowingly, — 
the world of time, the world of the body and the 
mind; and the world we live in unknowingly, — the 
world of eternity, the world of the spirit ; that gov- 
ernments belong only to the world of the present, 
with no larger life than it can give ; that they are less 
than the men they govern, and when they have sought 
to give laws to the human spirit have opposed them- 
selves to the order of the universe. 

Modern government began when the State with- 
drew from its long alliance with Christianity. 

11783- 



MODERN GOVERNMENT 17 

It was a natural epoch in the history of individual- 
ism. Family, patriarchal, tribal governments, had 
rested on a family, patriarchal, tribal religion. The 
teachers of Christianity had sought to make one 
family of all nations, under the Church of Rome, and 
had failed in the attempt. The Protestant Reforma- 
tion had — so far as governments were concerned — 
done little except to put the power of the Church into 
the hands of the civil magistracy. But, so far as in- 
dividual men were concerned, it had declared a new 
right of private judgment in matters of religion. 
And, however kings and legislators may have en- 
deavored to reconcile this right with religious estab- 
lishments at the common cost, the struggle has been 
a hopeless one. 

Nor need I say that religion has nowhere suffered 
by being left to itself. In Leipsic, for instance, where 
a certain form of religious establishment exists, with 
a population of nearly 200,000, there are now but six 
churches in which Sunday services are regularly held. 
In no American city of that size would there be found 
less than a hundred ; and it is on American soil that 
disestablishment had its earliest and has struck its 
deepest roots. 

Virginia, in 1786, in a statute drafted by Jefferson, 
proclaimed it " to be a natural right of mankind that 
religious opinions shall never affect civil capacities, 
and that no man can be compelled to support any re- 
ligious worship." This declaration, soon translated 
into French and Italian, was circulated widely in 
southern Europe. Madison had defended it in the 
legislature with his accustomed vigor. The question, 



I 8 THE CENTENARY OF 

he said, had been stated by the opponents of the bill, 
as if it were, " Is religion necessary? " But the true 
question was, " Are establishments necessary for 
religion? " 

Next came the Ordinance of 1787, to lay the foun- 
dations of government for the vast territory out of 
which sprang the commonwealths surrounding the 
great lakes. It has not the ring, upon this point, of 
the statute of Virginia, but it does declare that no 
person shall ever be molested on account of his mode 
of worship or religious sentiments, so long as he 
keeps the public peace. 

That same summer the convention that framed our 
Constitution was sitting with closed doors in Phila- 
delphia. Its work was, no doubt, in the main, a re- 
arrangement of existing materials. It took American 
institutions and put them in a new order and combi- 
nation. But it did more. 

Every delegate came from a State where some civil 
distinctions had always flowed from religious distinc- 
tions. There was probably not more than one who 
would not have considered himself an adherent of the 
Christian faith. The leaders were familiar with the 
political philosophy of antiquity, and with that of 
their own day ; with Montesquieu and with Adam 
Smith, They found an unbroken current of authority 
in favor of uniting civil and religious institutions, to 
some extent, in every government. And yet at the 
call of the youngest of them, Charles Pinckney of 
South Carolina, fresh from his law studies in the 
Inner Temple, they were ready to take this great 
step forward, by forever prohibiting all religious tests 



MODERN GOVERNMENT 19 

for office or public trust, under the United States. 
He made the proposition a month after the enact- 
ment of the Ordinance of 1787. The committee of 
detail to which it was referred took no notice of the 
suggestion in their report; but Pinckney secured its 
adoption as an amendment, and it stands as the close 
of the last Article but one. 

In advocating the ratification of the Constitution in 
the South Carolina convention, a year later, he in- 
sisted on this feature as all-important. There was, 
he said, but one great government in Europe which 
provided for the security of private rights, and that 
withheld from part of its subjects the equal enjoy- 
ment of their religious liberties. Avoiding this error, 
we were to " be the first perfectly free people the 
world had ever seen." ^ 

At this time, we must not forget, and for forty 
years later, the Test Act and Corporation Act of 
England excluded all men from office who were not 
members of the Church of England. Most of our 
own States retained some religious test as a quali- 
fication for the higher offices, and religious estab- 
lishments were not forbidden in any, and expressly 
provided for in the Constitutions of six.^ 

This opening of public trusts to all men, on an 
equal footing, found warm support from the leaders 
of the clergy, even in New England, where their 
influence was strongest. Fifteen ministers were mem- 
bers of the Massachusetts convention, and all but one 
voted for the ratification of the Constitution. 

1 4 Elliott's Debates, 319. 

2 Delaware, Georgia, Maryland, Massachusetts, New Hampshire 
and South Carolina. 



20 THE CENTENARY OF 

'* Many," said one of them, the Rev. Isaac Backus, 
with reference to this abolition of religious tests, 
" appear too much concerned about it, but nothing 
is more evident, both in reason and the Holy Scrip- 
tures, than that religion is ever a matter between God 
and individuals. . . . The imposing of religious tests 
hath been the greatest engine of tyranny in the 
world." 1 

" God alone," said Rev. Phillips Payson, in the 
same body, " is the God of the conscience ; and con- 
sequently attempts to erect human tribunals for the 
consciences of men are impious encroachments on 
the prerogatives of God."^ 

The provision against religious tests for office left 
Congress still free to set up a religious establishment. 
One may well fall without the other. Such has been 
the slow course of English history. But when the 
sons of New England Puritans, New York Church- 
men, Pennsylvania Quakers, Maryland Catholics, Vir- 
ginia Cavaliers, Huguenot Carolinians, came together 
to join their independent commonwealths in a na- 
tional life, they could not fail to see that church 
unity was impossible. The very fact that so many 
of our States had had a State religion was the 
strongest argument why the Union should have 
none. 

New Hampshire, where Roman Catholics were de- 
barred from office until 1877, was the first to propose ^ 
a further guaranty of religious liberty as an amend- 
ment to the Constitution. Virginia and New York 

1 2 Elliott's Debates, 148. 2 /^^-^.^ 120. 3 June 21, 1788. ■ 



MODERN GOVERNMENT 21 

acted promptly in the same direction, and it was for 
want of this, among other provisions, that North Caro- 
lina refused to ratify the Constitution at all. At the 
first session of the first Congress, such an amendment 
was proposed to the States. It was set third in a 
list of twelve, preceded by one to regulate the num- 
ber of representatives in the lower house, and another 
to prevent Congress from increasing the pay of its 
members after their election. The States impatiently 
swept both of these away, and so put at the head 
of the ten which they ratified the provision against 
church establishments and church domination, — fitly 
placed first, because the most important, the most 
novel of all. 

The National Assembly of France was also moving 
towards the same end, and there, too, the mass of the 
clergy were at first with the reformers. Progress in 
Europe has been naturally slower than with us, for 
there was more to surrender. The support of the 
nation has often been accorded to diff"erent churches, 
on equal terms. There has been disestablishment in 
one part of a country, and not in another. But it is 
safe to say that in no country of Christendom is any 
church connected with the government in the same 
close way in which it was throughout the course of 
ancient society. 

And this again has thrown new functions on the 
State. 

The Church, in former days, had the general charge 
of education. It collected the scholars, it supplied 



2 2 THE CENTENARY OF 

the teachers, it paid them, it regulated their work, 
and saw that its own doctrines and discipline were 
made a part of all instruction. But when it could no 
longer draw from the public treasury, or when the 
State went one step further and deprived it of its 
accumulated possessions, this duty of education be- 
came a public one. The more ignorant the people, 
the firmer the government, when that government 
exists for others' benefit. But give the people real 
power, and they must be taught how to use it, if you 
would not have it used to their destruction. 

I do not forget that public education had been the 
child of New England from the days of the Puritans. 
But only in this century has it become national, and, 
we may say, universal in free governments. 

It was the French Constitution of 1791 that really 
introduced it as a feature of modern government on 
a great scale ; and Germany adopted the principle of 
compulsory education when it was, even here, but a 
half-tried experiment. 

That the ideal State should rest on a basis of pub- 
lic instruction is indeed no idea of modern times. 
When Plato sketched his plan of the republic of 
the future, he set it on that foundation. It was the 
hope of Harrington, — the early practice of Massa- 
chusetts and Connecticut. It was for our age to ex- 
tend it to great nations, at the cost of millions ; to 
bring it even into Oriental government, so that in 
Japan to-day there are 30,000 public schools, nearly 
200 colleges, and two great universities, all largely 
supported from the imperial treasury. 

But this transfer of a great prerogative from the 



MODERN GOVERNMENT 23 

Church to the people has its inevitable dangers. If 
there is a national peril towards which we are now 
drifting, it lies in this direction. It is the question 
of the right and duty of the State as to education 
in matters of religion. 

It is the law of many of our States that every child 
must be educated to a certain point, either at a pub- 
lic school or under private instruction. The Roman 
Catholic Church has always believed that religion, 
and the religion which it holds itself, is a necessary 
part of all true education. It has, during the last 
twenty years, taken formal issue with the American 
public-school system and organized a system of its 
own, of parochial schools. Whether this policy be 
right or wrong, there should be, surely, the fullest 
liberty to pursue it. Laws have been recently pro- 
posed in more than one of the States to forbid the 
use of any text-book in a private school not ex- 
amined and approved by some public authority, and 
even to make it penal to use influence upon a father 
to induce him to take his children out of a public 
school. If such laws ever come to be enacted, it 
would be indeed a sign that the principles of Ameri- 
can liberty are losing ground. 

The State church was never without a State uni- 
versity, and it was a fitting thing that the hand which 
drew the Declaration of Independence was also that 
which sketched the plan for the first great State 
university in America. The epitaph of Jefferson, 
written by himself, names but three events in a long 
life of public service, and they epitomize the his- 



24 THE CENTENARY OF 

tory of American liberty. " Here," say the solemn 
words, — 

"HERE LIES BURIED 

THOMAS JEFFERSON, 

AUTHOR OF THE DECLARATION OF AMERICAN INDEPENDENCE, 
OF THE STATUTE OF VIRGINIA FOR RELIGIOUS FREEDOM, 
AND FATHER OF THE UNIVERSITY OF VIRGINIA." 

The influence of an established church, also, in 
literature was always a controlling one. The great 
libraries, from which all good books grow, were 
founded and maintained by its revenues. Modern 
government has inherited this function, and the pub- 
lic library, free to all, and open to every author, from 
vast collections like the British Museum to the 
bookcase in the country schoolhouse, is the great 
gift of the age towards a larger national life. 

The State church was a great bureau of registration, 
tracing out, where it was strongest, by its entries of 
baptisms, marriages, and funerals, the course of every 
individual life. The place of this is now everywhere 
supphed by a system of public record offices. 

In thus separating from any political union with the 
Church, the State does not cease to regard it as a 
natural ally. And, in token of this, an exemption 
from taxation of property held for religious uses of 
any kind is almost universally conceded, the equiva- 
lent, of course, of a large annual grant from the 
treasury. Government seeks no longer from the 
Church the aid of any divine sanction for constituted 
authority, but it still recognizes religion as the best 



MODERN GOVERNMENT 25 

teacher of morals, and therefore the best friend of 
public order among a free people. 

The exclusion of the Church, with its paternal 
authority and paternal bounty, from a voice in gov- 
ernment, has contributed greatly towards the devel- 
opment of that State socialism which no civilized 
country is now wholly without. 

It begins with giving free schools, free libraries, 
perhaps free universities ; but it does not stop there. 
It establishes parks, museums, galleries of art; builds 
railroads, and controls them ; inspects the tenement 
house; lays paved sidewalks in every village. It 
arranges this vast system of national and international 
mails, by which two cents takes a letter from Boston 
to San Francisco, and five cents carries it to Tokio 
or Australia. It regulates the hours of labor, the age 
of labor. It throws new duties on the employer. In 
Germany, where State socialism goes farthest, it 
forces the laborer to insure himself, out of his wages, 
against the chance of future want, as we have long 
compelled our seamen to insure in the same way 
against sickness or disability, by payments to the 
Marine Hospital Fund. 

But while State socialism means more in one 
country than another, modern government has one 
universal characteristic, — popular representation in 
the legislature, based on a wide and constantly widen- 
ing grant of suffrage. 

There were hardly any of our American States, a 
hundred years ago, which did not demand that the 



26 THE CENTENARY OF 

elector should be a tax-payer. There are hardly any 
now that do require it. England has reached almost 
the same result. Germany, France, and Greece have 
gone beyond it, and made suffrage universal. Every 
citizen is incorporated into the German Empire by 
taking him, through a public education and military 
service, up to the ballot-box, on equal terms. 

The republic is but one form of modern govern- 
ment, but this republican principle of a broad suffrage 
is at work in all. Its inevitable tendency is towards the 
universal abolition of class distinctions, — a tendency 
stronger, of course, in proportion to the freedom and 
equality already gained. 

It was this that forced negro suffrage upon the 
South at the close of the Civil War. There were 
weighty reasons against thus pushing the freedman 
at once into the ranks of the electors. He belonged 
to a race that has known little of political power, and 
done nothing to prove its fitness to enjoy it, and he 
had been reared in ignorance and dependence. But 
negro suffrage was an American idea. It prevented 
the formation of a new social class. Laws had already 
been passed in several of the Southern States — " ap- 
prentice laws " — which would soon have formed one, 
had a class of freedmen survived the war. 

The negro has often used the suffrage ignorantly, 
selfishly, unwisely. Many another has done the same. 
But when he received the gift and passed into the great 
circle of American citizenship, the last class less than 
citizens was abolished, I hope forever, from American 
statute-books. Nor was it, as an indication of political 
development, to be compared in significance to the 



MODERN GOVERNMENT 27 

movements in a similar direction in England, begin- 
ning with the Reform Bill of 1832, and ending with 
the vote, in 1889, of the House of Commons, when 160 
members declared themselves in favor of abolishing 
all hereditary seats in the House of Lords, and the 
government could muster but about 200 to defeat the 
motion. 

The grant of suffrage to women is now becoming 
common in municipal elections. It has been tried 
in those of a more public character. If I were to 
forecast the future I should say that whether 
modern government in Europe is to tend towards 
republicanism or towards monarchy will depend 
in no small degree upon its treatment of this 
question. 

Goethe has declared that women love order rather 
than freedom. If the number of voters is doubled 
by their admission to it, the stability of settled 
dynasties and the glitter of courts may find a new 
support against any movement towards the rough 
changes of republican administration. 

Modern government makes the ballot more and 
more the instrument of suffrage, even in legislatures. 
The change in this has been almost revolutionary. 

In England, landlords seeking to control their ten- 
ants, employers seeking to control those in their 
service, established interests seeking to prevent re- 
form, and sentimentalists relying on the dignity of 
manhood, had combined to exclude it from her institu- 
tions. Even in the Municipal Corporations Act of 



28 THE CENTENARY OF 

1835, th^ ballot in municipal elections was made an 
open one, with the name of the voter who cast it 
written upon each. 

Our own colonies passed into independence under 
the influence of the same ideas. Down to 1787 the 
State of New York had always elected the members 
of its legislature by acclamation, and its first Constitu- 
tion permitted a change to election by ballot simply 
as something worthy of a " fair experiment " ^ and 
subject to a return to the old system, if the legisla- 
ture should decide that the experiment was unsuc- 
cessful. 

But no free nation has ever adopted the ballot and 
then discarded it, unless she was ready to discard her 
freedom. The ends of modern government demand 
it in its completest form. It was for remote Australia 
to revive this form, after the lapse of two thousand 
years, and give the world again the secret ballot as 
Cicero knew it, when he described it as the vindex 
tacitcs libertatis. The Roman ballot, under the Ga- 
binian law, was furnished by the State, and bore the 
names of all who were in nomination, the elector 
marking by a point that of the candidate whom he 
preferred. The interplay of national influences, so 
characteristic of the age, was never more conspicuous 
than in the re-introduction of this plan in modern use. 
Successful in Australia, England, under the lead of 
Gladstone, did not disdain to follow one of her young- 
est children in extending it to Parliamentary elec- 
tions, and our own States have adopted it in rapid 
succession. 

1 Poore's Charters and Constitutions, ii. 1333. 



MODERN GOVERNMENT 29 

Modern government is coming to put a new limita- 
tion on the suffrage, — that the majority shall not 
govern. 

Minority representation in office is the invention of 
the last half of the century, both as regards elections 
by districts of inhabitants of the district, as distin- 
guished from voting for a general ticket, and as 
regards voting for less than the number to be elected. 

Thirty years ago this latter plan was adopted by 
the British Parliament for the elections to the House 
of Commons from some of the larger constituencies, 
and a few years later the cumulative vote became a 
part of the elective system of Illinois for members of 
its legislature, and was adopted by Pennsylvania for 
the government of her private corporations. In our 
municipal corporations, one or the other of these 
methods is rapidly becoming the rule for the election 
of all official boards. 

But with all these changes in the range and mode 
of suffrage, the power that goes with it, as distin- 
guished from the numbers by whom it is shared, 
has not risen to the height anticipated in the " ideas 
of '89," as these were formulated then in the Consti- 
tution of the French Republic. Sovereignty, they 
said, belonged to the people. It was one and indivisi- 
ble, imprescriptible and inalienable. One genera- 
tion could not bind succeeding generations to its 
laws.^ 

Jefferson's private correspondence shows that he 
brought back from France these conceptions of the 
1 Constitution of 1793, Articles 25 and 28. 



30 THE CENTENARY OF 

rights of the people, but they found no place in his 
political action or in the institutions of America. 

On the contrary, it is the corner-stone of modern 
government that there shall be obligations created or 
preserved by an organic law which no popular major- 
ity and no legislative majority can overcome, except 
through forms and delays prescribed by that law for 
its own defence. It is this that makes the modern 
republic — that has made the United States and every 
State that is associated to compose them — possible. 
And it is itself made possible by an American 
device. 

The history of all republics before ours had been 
that either of weakness or of certain lapse into the 
hands of tyrants. It was for us to show that supreme 
and ultimate power could be so intrusted to a few 
men that they would have slight temptation to abuse 
it, and that its exercise would seldom cause political 
disturbance, or even attract so much as the notice of 
the community. 

The problem was to make the legislative power, 
whether exercised by popular or parliamentary vote, 
subject to some superior authority, and still leave it 
free to represent the public will. The American 
solution is through the judiciary, but it does not con- 
sist in simply writing down that will in the form of a 
Constitution and comparing every statute with it. 

The justiciary of Aragon once had the power of 
annulling laws which he deemed contrary to the fun- 
damental principles of the monarchy. But he could 
exercise it of his own motion, as an abstract political 
question ; and the power was found too great to be 



MODERN GOVERNMENT 31 

tolerated. The modern plan of making the pohtical 
question dependent on the issues of some private liti- 
gation, to be decided like any other contested matter 
incidental to the suit, seems illogical and unsystematic ; 
but it does not offend by any show of authority ; it 
takes the initiative from the court and gives it to any 
private citizen ; it secures respect without seeming to 
command it. 

A Rhode Island court, in 1786, first brought this 
function of the judiciary distinctly into action, in 
determining the construction of her charter, and the 
Circuit Courts of the United States exercised it with- 
out hesitation, in reference to an early Act of Con- 
gress, five years later,^ so that when, in Marbury v. 
Madison? it was first applied by the Supreme Court, 
it had already come to be recognized as a necessary 
part of our American institutions.^ 

The threefold division of the powers of government, 
insisted on by Montesquieu, is expressed in most 
modern Constitutions. In monarchies they seek to 
hold the power of the executive in check by increas- 
ing that of the legislature. In republics, they seek to 
hold the legislative power in check by strengthening 
the executive. 

With us, this confidence in the executive power is 
not any traditional inheritance from colonial days. 
The veto of the colonial governors, when they had 
one, was rarely used except in opposition to the 

1 Hayburn's Case, 2 Dallas, 410. ^ j Cranch, 137. 

3 This subject has been treated of with great fulness and learning 
in a posthumous essay by Brinton Coxe, on Judicial Power and Uncon- 
stitutional Legislation. Phila., 1893. 



32 THE CENTENARY OF 

popular will and the popular interests. In the early 
State Constitutions, it was rejected, with one solitary- 
exception, — that of Massachusetts. It is now found 
in all but six. 

We have adopted it because experience — and expe- 
rience is the result of many experiments — has taught 
us to believe in a strong executive, provided it is a 
good one, and because we find it easier to watch one 
man than an assembly of men. 

We adopted it in the face of the course of the 
mother-country, which had turned so sharply in an- 
other direction. The Puritans left England before 
she came to be governed by a ministry, responsible 
to her legislature, Americans saw her change, in the 
hundred years that followed the accession of William 
and Mary, her whole system of administration. The 
executive was deprived of its veto ; the upper house 
of Parliament crowded back into insignificance ; the 
leader of the House of Commons had become the 
real king. 

All this the new States of America saw, but they 
still, even while, at first, following England in abolish- 
ing the veto power, agreed in rejecting the device of 
a parliamentary ministry, and deliberately preferred 
to leave the responsibility of administration unchecked 
in the hands of their governors. 

The Federal Constitution followed in the same 
lines. The President has his cabinet, but they are 
nothing in power, — men of his choosing, the agents 
and assistants of his will, with no seat in Congress, 
and no fear of it. 

The veto, that English kings retain only in name, 



MODERN GOVERNMENT 33 

has been with us often the best safeguard of the 
people, and was never more powerful for good than 
it is to-day. The legislature itself has come often to 
rely on the executive, and not in vain, to defeat bills 
which it has not the courage to reject, or the patience 
to examine. At a recent session of that of our 
greatest State, two-thirds of the bills enacted were 
passed within the last ten days; thus leaving it 
wholly in the hands of the Governor to say, after 
the adjournment, whether they should become laws 
or not. 

We are not afraid of the executive, because we 
have guarded ourselves against any act of his that 
might oppress us by something stronger than Magna 
Charta. We have made him powerful because his- 
tory has proved, even our own, that the executive 
power is often the best protection against the tyranny 
of majorities. 

Nor does modern government in any way tend to 
lessen the personal dignity and weight of the execu- 
tive. It recognizes the strong impulse of the human 
mind to respect and reverence for authority, as rep- 
resented in whatever individual is the titular head of 
the nation. The public interest in every incident in 
the daily life of the President of the United States, or 
of Queen Victoria, means something. It is what has 
kept alive so many monarchies in the past, which 
existed only as an incumbrance on society. The per- 
sonal equation in government is a constant force, the 
more powerful because unmoved by reason, uncon- 
trolled by law. 

We recognize the sentiment of hero-worship, but 
3 



34 THE CENTENARY OF 

we see its limits. Our governments guard against 
the hero, and against the unwisdom of his worship- 
pers, by laws and institutions that are insensible to 
enthusiasm. 

Carlyle may still preach to this generation that 
national well-being depends, not on any merit of laws 
or institutions, but on human goodness and human 
greatness. The century listens to him with respect, 
but not with faith. It would have men good, if it 
can ; but it would have good laws, because it can. 
The people may stand for many bad men, many fool- 
ish men, many headstrong men ; but the machinery 
of modern government keeps them in check. Marcus 
Aurelius was one of the best rulers that mankind has 
ever had, but the machinery of ancient government 
allowed him — in all ignorance and honesty of pur- 
pose — to persecute and tread down the new religion 
that had come to transform the earth. The laws of 
New England, rather than the Puritans, were guilty, 
when women were hanged as witches at Salem. 

For another feature of modern government, we 
may look back to a Roman origin. The difficulty of 
combining a strong central administration for an im- 
mense territory with due provision for the good gov- 
ernment of every part, Rome met by the organization 
of municipal corporations to regulate local interests. 
The dark ages, the institutions of feudalism, the 
strengthening of monarchical power, swept municipal 
autonomy out of existence. This century has restored 
it with new guaranties against corruption, or abuse 
of power, and broadened it from the walled town to 



MODERN GOVERNMENT 35 

the village, the school-district, the county, colony, 
province and State. 

To these local agencies, more and more, matters of 
local regulation are being confided, and Home Rule 
has become the watchword of free government. 

One quarter of our population is now centred in 
our cities. A hundred years ago there was no city 
in the Union which numbered 40,000 inhabitants. 
How many States are now without one? And how, 
except in this way, could such great gatherings of 
freemen be kept in order? 

The combination of local home rule with a central 
authority to direct inter-communication between the 
several communities, and determine all questions of 
foreign relations, is the best form that modern con- 
stitutions assume. 

It was a daring experiment to attempt it here in 
1789, and the hazard grew when the Louisiana pur- 
chase came, a few years later. It is not too much to 
say that only the mechanical inventions of the century 
have preserved its political ideals. The steamboat, 
the railroad, the telegraph, the newspaper dashed 
from electrotypes by the cylinder press, have in quick 
succession brought the broadest territories into close 
communication with their centres. 

In some respects they have reversed the practical 
working of our own Constitution, as men anticipated 
it. The electoral colleges, for instance, meeting on 
the same day in every State, might now agree by 
telegraph on common candidates ; but, on the other 
hand, modern facilities of travel have made those 
national conventions possible the power of which 



36 THE CENTENARY OF 

has made the presidential electors but empty names. 
The capital, which many fancied, from the length of 
the journey to it, would become the ordinary res- 
idence of senators, if not of representatives, the seat 
of an intriguing oligarchy, is the home now of no 
one but the President, a handful of judges, and the 
department clerks. The centre of affairs for every 
ofhce-holder remains the community from which he 
comes. 

The rule of local laws for local interests, enacted 
under such limitations as may be prescribed by some 
central authority, has smoothed the way for another 
innovation of transcendent importance : that all laws 
must be general, applicable to all men, and all in- 
terests, in similar positions. To this, modern society 
is driven by its rule of equality. The world was not 
much given to legislation before the days of the 
French Revolution. All the statutes of Rome, in the 
days of her greatness, were not more in number than 
one of our larger States is now accustomed to enact 
in every decade. There is but one remedy to be 
applied : the universal prohibition of special legisla- 
tion where a general law will secure the end. And 
this is possible only by granting extended powers of 
local administration to local governments. 

The evils of over-legislation in this country, how- 
ever, are by no means proportioned to its amount. 
Much of it is, at worst, but useless. Americans do not 
often legislate except to meet some practical neces- 
sity, real or imagined. There is little speculative or 
theoretical statute law, such as marked the entry of 



MODERN GOVERNMENT 37 

France into the field of modern government. This 
makes our statute-books unsymmetrical, but it makes 
them safe. Nor are our Constitutions as open to 
this charge as our ordinary legislative acts. We 
have not forgotten that there are laws so deeply 
rooted in the society out of which they spring that 
they execute themselves. We know that these are 
the best laws, and that the modern Constitution does 
best when it is their simplest expression. 

Another characteristic of modern government is its 
support from journalism. It may be fairly said that 
it could not exist and could not have existed with- 
out it, less from the direct influence which it exerts 
than from the publicity and close scrutiny of official 
action which it secures. 

Until a hundred years ago, legislatures, the world 
over, sat, practically, with closed doors. Journalism 
during this century has demanded that they be 
thrown open, and has thus put the people bodily into 
the legislative assembly. Secrecy has been lost, and 
safety gained, — safety, for no law is so bad as the ill- 
considered law, and no law can be well considered 
that has not been fully discussed in public, by the 
men whose interests it concerns. 

Here, I think, has been the great work of the news- 
paper in politics. It has turned on the electric light. 

Its direct influence on the masses of the people 
may be easily overrated. It acts on the politicians 
more than on the community at large. It distributes 
offices, and brings men into power, but it is often 
forced to think and act too quickly, perhaps too sel- 



^8 THE CENTENARY OF 

fishly, to be in touch with the real movements of 
public opinion. 

Newspaper discussion of questions of State is, no 
doubt, often flippant, and sometimes shows a desire 
to say something striking rather than to say some- 
thing true. In a government like Germany, but half 
modernized, the newspaper, too, is but half modern- 
ized. When Bismarck in 1889 brought into the 
Reichstag a bill to visit editors of socialistic journals, 
who denied the right of private property, with three 
years' imprisonment, it was because he wished no 
schemes of socialism but his own ; and his law showed 
what Germany lacks, a Constitution which makes 
socialism, in the evil sense, impossible, and leaves it 
a harmless theory, the more harmless when the most 
discussed. 

Modern government is becoming more and more 
a government by party. But parties represent less 
than they once did. As class lines fade out, and 
class interests no longer exist to be protected ; as 
public education lifts the mass of the community to a 
more intelligent and, therefore, more candid view of 
political questions ; as the general tone of morals is 
strengthened, as strengthened it is by all these influ- 
ences, — parties come to have no policy but to get into 
power, or to keep in it, for the sake of place and 
patronage. Practical politics is thus becoming the 
art of managing and supporting nominations; and 
our American system of primary nominating assem- 
blies, by which the voter has two opportunities of 
power, one at the caucus and one at the polls, 



MODERN GOVERNMENT 39 

seems likely to spread wherever popular election is 
found, and to find equal protection from law. 

It often proves a means of undue minority repre- 
sentation. The nominees ordinarily gain their posi- 
tions by a slender majority of their own party, and 
are opposed by the whole of the other. Where par- 
ties are nearly equal in numbers, their election, there- 
fore, is really contrary to the will of the majority of 
the people, though a sense of party obligation may 
give them the votes of that majority. 

And, on the other hand, this exposing every candi- 
date for ofhce to the gantlet of two votes, one of his 
political associates, and one of the whole people, is no 
slight guaranty that men notoriously unfit will be 
either set aside in the caucus or rejected at the polls. 

As some barrier to the demands of party, those 
governments where it is strongest have taken care 
that their lesser functions shall be performed by those 
who have some special fitness and training for it. 
This training may be done by the government or by 
a private education, but in either case some pub- 
lic examination is the test of its success. Offices 
are no longer sold, or given. That " public office 
is a public trust," all governments are coming to 
acknowledge. 

The principles of modern government make new 
nations conservative, and unsettle old ones. 

In no country in the world is property as secure as 
it is with us. The guaranties of our Constitution 
have intrenched it against public as well as private 



40 THE CENTENARY OF 

attack. The British Parliament, during the last half- 
century, has destroyed vested rights, broken up titles, 
seized private property for private use, in a way that 
to an American seems almost revolutionary. Such 
legislation is the attempt of an old government to 
adjust itself to new conditions of society, by the use 
of powers that belonged to its old conditions. It is 
putting new wine into old bottles. It benefits one 
class and spreads a feeling of insecurity through all. 

It was the want of guaranties against acts like these 
that kept the ratification of our Federal Constitution 
so long in doubt. Its framers guarded the people 
against unequal or unjust legislation by the States, 
but as against the United States they only preserved 
the writ of habeas corpus, ensured trial by jury in pros- 
ecutions for crime, forbade an increase of penalty 
after the commission of the act, and defined the 
nature and consequences of treason. 

The contrast is marked between these scanty securi- 
ties against the unknown powers of the new govern- 
ment they were creating, and the warm declaration of 
the Rights of Man that, at about the same time, came 
from the National Assembly of France. But the ideas 
of '89 in America, were not the ideas of '89 in France. 
They were then, where we were in '']6, thirteen years 
before, proclaiming the universal rights of mankind. 
They had not reached the consideration of the par- 
ticular rights and privileges best suited to the condi- 
tion of their own people. Or, if they had reached it, 
they were not ready for it. 

Our Constitution, therefore, has a cold and un- 



MODERN GOVERNMENT 41 

shapen look as compared with those which France 
struck off in rapid succession in the closing years 
of the eighteenth century. This was one of the 
most telling arguments of those who opposed its 
ratification. 

" In this Constitution," said Thomas Tredwell, in 
the New York convention of 1788, "we have departed 
widely from the principles and political faith of ^']6, 
when the spirit of liberty ran high, and danger put a 
curb on ambition. Here we find no security for the 
rights of individuals, no security for the existence of 
our State governments ; here is no Bill of Rights, no 
proper restriction of power; our lives, our property, 
and our consciences are left wholly at the mercy of 
the legislature, and the powers of the judiciary may 
be extended to any degree short of almighty." ^ 

And, in truth, the people everywhere, with a truer 
instinct than their leaders, saw with surprise that the 
Bill of Rights which they had framed into every State 
Constitution, was wanting here. They gave a hesi- 
tating assent to the new scheme, but recommended, 
in language that meant command, that the omission 
should be supplied, and supplied at once. Congress 
obeyed, and the first ten amendments placed the 
personal rights of the American citizen on higher 
ground than those then or now belonging to any 
other people. 

But with all this there is no permanence in modern 
government. In its fundamental principles there is ; 
in the proper adaptation of them to the needs of each 

1 2 Elliott's Debates, p. 401. 



42 THE CENTENARY OF 

particular community, there is not, and there never 
can be. 

For this very reason it cannot fasten on the East 

— on Asia or Africa — until untold generations have 
passed away. Its instability is radically foreign to 
their national ideas. They can tolerate revolutions 
of dynasties, but not of laws. 

Japan has signalized the opening years of the sec- 
ond century of modern government by the promul- 
gation of a written Constitution. But it emanates 
from a single hand, which retains still the ultimate 
sovereignty, as an hereditary and irrevocable right, 
and forbids any future extension or alteration of its 
provisions, unless on the proposition of the crown. 

The first centenary of modern government is closed. 
When the second is attained, this country, with a 
population now exceeding that of any European 
power but Russia, may not improbably have one as 
large as all of them combined. It will have had new 
perils to meet, a larger life to live, a greater work 
to do. 

Carlyle has said that the true bible for every 
nation is its own history. If so it be, the last 
books must be better, wiser, truer, than the first. 
There must be a new testament built upon the old 

— with its broader, freer, higher life. And such, 
thank God, is to us, thus far, our bible of American 
history. 

We have taken up the ideas of '89 and advanced 
them. We have taken religious freedom from the 



MODERN GOVERNMENT 43 

national Constitution, and put it into our State Con- 
stitutions also. We have widened suffrage, improved 
its methods, set guards to the power of the majority. 
We have advanced and extended public education. 
We have been loyal to our institutions, faithful to 
our laws, — each of us, as he understood them ; and 
when men differed, and hesitated in their allegiance 
between State and nation, by the strong hand of 
war the will of the nation was lifted into acknowl- 
edged and unchallenged supremacy. It cost much : 
years of angry debate, years of fierce war, hundreds 
of thousands of lives and thousands of millions of 
money ; but it has been done, and there are few to- 
day who, if they could, would have the result reversed. 

We have carried human charity — in its widest 
sense — farther than it was ever pushed in any age 
or land before. We have struck hands with other 
nations in honest and successful efforts to make the 
whole world better. The slave-trade has fallen by 
our aid. International arbitration, in the place of war, 
has had its noblest illustrations in the last thirty years 
of American history. The right of choosing one's 
own sovereign — of voluntary expatriation — we have 
made, throughout the earth, free to every man who 
has once left his native land. The project of a code 
of general laws, common to all nations, once the 
mere dream of poets, has been put in form by an 
American,^ to whose labors in jurisprudence the 
world is debtor, and is now under serious discussion 
by the jurists of every civilized country. 

1 David Dudley Field. 



44 MODERN GOVERNMENT 

Washington, in his inaugural address, a hundred 
years ago, declared that " the destiny of the republi- 
can model of government" was "justly considered as 
deeply and perhaps finally staked on the experiment 
intrusted to the hands of the American people." 
We have fulfilled the solemn trust, and we have done 
more. In leading the way towards good republican 
government, we have, almost unconsciously, led the 
way too toward all that is best in modern govern- 
ment of every name. The great kingdom to which 
we once belonged is the better because we struck 
for independence, and has been glad to copy both 
from our public and our private law. The influence 
of our institutions is felt in every country where men 
read and think, and our own continent has been 
transformed by them into a great sisterhood of free 
governments, each resting on the consent of its 
people and planned only to promote their welfare. 



CHAPTER III 

THE FIRST century's CHANGES IN OUR STATE 
CONSTITUTIONS.! 

1779-1879 

THE earlier Constitutions of our American States 
were generally quite similar in character. 
Their aim was to express the fundamental principles 
of civil liberty in language so explicit that no public 
officer could ever pretend to misunderstand them, 
and to distribute all, rather than to withhold any, of 
the powers of government. 

The department most trusted was the legislative, 
and the main declarations of rights were meant to 
guard against any abuse of power by the executive 
and the judiciary. 

Nor may we forget that civil liberty in 1776 did not 
mean what we understand by it to-day. The prevail- 
ing lines of thought were aristocratic. Few denied 
the right to hold men in slavery ; fewer still supposed 
it to be either right or politic that every American 
citizen should have a vote. 

The first Constitutions were hastily put together; 
sometimes by a revolutionary convention or con- 
gress ; sometimes by the ordinary legislative assem- 

1 In the preparation of this chapter free use has been made of a 
paper read by the author before the American Social Science Associa- 
tion at Saratoga, September 11, 1879. 



46 THE FIRST CENTURY'S CHANGES 

bly. The Declaration of Independence found the 
" old thirteen " colonies at work, as John Adams 
wrote a friend, erecting governments " as fast as chil- 
dren build cob-houses." Most of them were not 
much more substantial. They lacked the necessary 
evidence of popular assent. Two which South Caro- 
lina framed before 1779, one by a provincial congress, 
and one by the General Assembly, were afterwards 
judicially declared by the Supreme Court of that 
State to have no more force than any ordinary stat- 
ute. If any of these so-called Constitutions of first 
impression, not directly authorized or ratified by 
popular vote, had greater strength or endurance, it 
is because they were accepted by general acquies- 
cence, — so general that it might fairly be deemed 
universal. 

Massachusetts and Rhode Island alone submitted 
theirs to the people for approval, each in 1778, and 
in each case approval was refused. Both States there- 
upon proceeded to provide for the assemblage of 
orderly constitutional conventions, and the work of 
these bodies was ratified in due course. The earliest 
true Constitutions, — Constitutions proceeding imme- 
diately from the ultimate depositary of sovereign 
power — were those of Massachusetts, adopted in 
1780 and still in force, and of New Hampshire, 
adopted in 1784 and replaced by a better six years 
later. 

Connecticut and Rhode Island, with the aid of de- 
claratory statutes, maintained their colonial form of 
government, almost unchanged, until far into the next 
century. 



IN OUR STATE CONSTITUTIONS 47 

The earlier Constitutions were made for a homoge- 
neous people, mainly Protestants, few of whom were 
without property, or in want of remunerative employ- 
ment. In the more Southern States, particularly in 
Pennsylvania, Maryland, Virginia, and South Caro- 
lina, there were some men whose fortunes would be 
deemed large even at the present day, and in all a 
considerable deference was paid to family position 
and professional rank. 

Under the influence of these conditions, suffrage 
was generally, and office often, limited to certain 
classes of property holders, and as to the latter some 
religious test was also imposed. 

These restrictions have been gradually disappear- 
ing, though four States still require the voter to be a 
taxpayer, five exclude atheists from public office, and 
it was not until 1877 that New Hampshire admitted 
any but Protestants to her legislature. 

There were few amendments to any of our Con- 
stitutions during the first quarter of a century. Mary- 
land was the first to act in this direction, by one 
adopted in 1792, to exclude members of Congress from 
State office and even from voting for State senators. 

The only methods originally pursued for making 
an amendment were (as in Maryland) by a vote of 
two successive legislatures, or by calling a constitu- 
tional convention. In 1818, an important divergence 
from this policy was initiated by Connecticut, which 
in that year framed her first (and still only) Constitu- 
tion. It was largely copied from that adopted by 
Mississippi the year before, but instead of following 
her by allowing the legislature, if changes were 



48 THE FIRST CENTURY'S CHANGES 

needed, to call a constitutional convention, provided 
that amendments proposed by the House of Rep- 
resentatives and agreed to by the succeeding legisla- 
ture should become part of the Constitution, if rati- 
fied by the direct vote of the people at the polls. 

This was simply an adherence to the ancient cus- 
tom of the commonwealth in its colonial days. Its 
government had been originally constituted by an 
agreement between the first planters known as the 
"Fundamental Orders" of January 14, 1638-9.^ 
These forbade the immediate re-election of the gov- 
ernor for a second term. In consequence of this, it 
became the custom to elect the governor of one year 
to be the deputy governor for the next, and vice 
versa. As the first term of Gov. John Winthrop, Jr., 
however, neared its close, the General Assembly pro- 
posed to the freemen of the colony to remove this 
restriction on re-eligibility, and ordered the secretary 
to insert the proposition in his next warrant for the 
choice of representatives, and to call for a popular 
vote upon it This was accordingly had, and resulted 
in carrying the amendment, restoring for the future a 
" liberty of free choice yearly." ^ 

This early action of the freemen of Connecticut 
was the origin of the modern referendum, rather than, 
as Borgeaud in his work on American Constitutions^ 
has it, the Constitution of 18 18 itself. 

1 Printed in Colonial Records of Connecticut, i., 20. 

2 Papers of the New Haven Colony Historical Society, vol. v., 
p. 182. 

3 V Etablissement et la Revision des Constitutions mix £tats-Unis 
d'Amirique. The passage is quoted in Thayer's " Cases on Constitu- 
tional Law," 221. 



IN OUR STATE CONSTITUTIONS 49 

The Swiss put this method of legislation, in 1874, 
to a use quite foreign to its original conception, in 
making it applicable to any law which 30,000 citizens 
or eight cantons might disapprove. The maxim Vox 
poptUi, vox Dei justifies taking the popular verdict 
on those questions only which are of universal inter- 
est and prime importance, questions as to which every 
man's mind is or ought to be made up before they are 
brought forward for decision by his vote. A people 
who feel themselves uninformed as to the merits of 
any measure presented to them for final action will 
generally vote it down. Such has been the result in 
practice of the Swiss referendum}- Laws of the 
merest detail have been subjected to its operation; 
among others one granting a salary of $2,000 for a 
secretary of legation at Washington.^ The rules of 
political as well as of dramatic art pronounce against 
resort on any but grand occasions to the ultimate 
tribunal of popular sovereignty. 

" Nee deus intersit nisi dignns vindice nodus." 

Until the Civil War, there were few substantial 
changes in our principles of constitutional law, other 
than those already noted. Such as there were tended 
to lessen the legislative power, by transferring it to 
the people or imposing absolute prohibitions against 
its exercise in certain directions. Internal improve- 
ments became a fruitful source of action in the latter 
direction ; so did the grant of special charters, or 
special privileges. The term of office of the governor 

1 Moses, on " Federal Government in Switzerland," 119. 

2 Winchester, on " The Swiss Republic," 167. 

4 



50 THE FIRST CENTURY'S CHANGES 

was prolonged in several States, and his election was 
generally, and that of the judges often, left to a popu- 
lar vote. Executive councils and councils of revision 
or censorship, one after another disappeared. 

The new Constitutions or amendments to Consti- 
tutions that were adopted were largely intended to 
secure improvements of an administrative nature. 
There were new schemes for the composition of the 
legislature, and the arrangement of electoral districts. 
The ballot grew in favor. Better provision was made 
for public education. 

And now comes that which breaks the history of 
the United States sharply in two. The " irresistible 
conflict " between two philosophies of humanity, two 
groups of States, reached its final issue. 

The Civil War struck slavery out of American gov- 
ernment; and the tendency, which had been strength- 
ening for half a century, to make suffrage universal 
was forced upon the country, irresistibly, by the four- 
teenth and fifteenth amendments to the Constitution 
of the United States. 

But the war did more. It created a new order of 
ideas in the business world. The thousand new activ- 
ities and enterprises that a few years then whirled 
into life ; the sudden rise of great fortunes ; the neces- 
sary concentration of vast capitals, public and pri- 
vate; the elevation of speculators and adventurers of 
every sort to the command of millions of money, 
massed together in the service of corporations ; and, 
with all, that kind of dizzy glare and false coloring by 
which social ideas are always confused and distorted 



IN OUR STATE CONSTITUTIONS 51 

when a land accustomed to laws is given over to the 
rule of arms, — all these brought new men and new 
dangers to the front. 

Statutes struggled against them in vain ; and the 
people soon saw that nothing less than radical changes 
in their civil Constitutions could meet the evil. They 
were made, and it is to the aim and character of these 
that we must look for the great alterations thus far 
made in our system of governmental law. 

The first century of American life under Constitu- 
tions framed by sovereign States began with the rati- 
fication by the people of Massachusetts of the work 
of their constitutional convention of 1779. The first 
Constitution of the United States, the Articles of 
Confederation, though framed by the Continental Con- 
gress in 1778, was not ratified until 1781. Massachu- 
setts was the pioneer in re-constituting a political 
sovereignty by the free consent, formally expressed, 
of the people from whom it proceeded, and for whose 
benefit it was to be exercised. Her Constitution is 
the Alpha and the Omega of constitutional law for 
the age which produced it, — the only one produced 
in the eighteenth century which has lived through the 
nineteenth. 

During the fifteen years between 1779 and 1794 
ten State Constitutions were adopted: during the 
fifteen years between 1864 and 1879, thirty-seven. In 
no intermediate period of the same length had any- 
thing approaching the latter number been reached. 

The first century of our constitutional existence 
closed, therefore, at a period of exceptional activity. 

This was the work of the politics of the war. 



52 THE FIRST CENTURY'S CHANGES 

During its progress some of the seceding States, when 
wholly or partly reoccupied by the national forces, 
formed temporary Constitutions to meet the exigen- 
cies of the times. On the restoration of peace and 
the adoption of the reconstruction policy, which 
forced negro suffrage upon the South, other frames 
of government were required by the party in power, 
and were wrung from the people as the price of rep- 
resentation in Congress. But, this representation 
once obtained, several of these States felt that they 
had fettered themselves too closely, and copied with 
unnecessary fidelity their Northern models. These, 
therefore, abrogated their " Reconstruction " Consti- 
tutions, and formed others, better suited to their 
tastes — perhaps to their institutions. 

In this way Alabama, Arkansas, Georgia, and Texas 
each during this period lived under four different 
forms of government ; and most of the other Southern 
States under three. 

Each of these changing Constitutions, however, has 
naturally had a considerable influence in shaping its 
successor. North Carolina, for instance, began the 
Preamble to her Reconstruction Constitution of 1868 
thus : " We, the people of the State of North Caro- 
lina, grateful to Almighty God, the Sovereign Ruler 
of nations, for the preservation of the American 
Union, and the existence of our civil, political, and 
religious liberties ; " and went on to declare " That 
this State shall ever remain a member of the Ameri- 
can Union ; that the people thereof are a part of the 
American nation ; that there is no right on the part 
of the State to secede." Six years later, when in full 



IN OUR STATE CONSTITUTIONS 53 

and unchallenged possession of every right of State- 
hood, she adopted a new Constitution, but the Pre- 
amble and the Declaration of Rights followed to the 
letter the same language, dictated as it was under 
circumstances so different. 

The special features of these Constitutions of the 
" reconstructed States," in immediate relation to the 
war or the negro race, have lost their interest, by 
reason of the fourteenth and fifteenth amendments 
to the Constitution of the United States, and the pass- 
ing out of existence of the Southern freedmen as a 
separate class. But they dealt also with the whole 
field of politics, and in common with those adopted 
during the same years at the North present for con- 
sideration certain social forces unconnected with the 
current politics (as we generally use that term) of the 
day, which before the close of its first century had 
stamped themselves deeply on American law and life. 

I have said that, in our earlier history, the legisla- 
tive department was that in which the people put 
most trust. It was of the people that our Colonial 
Assemblies were composed ; though their governors 
and judges might be appointed by the crown or 
raised to office and kept there by the influence of 
wealth, family, or education, — all greater powers by 
far in American politics a hundred years ago than 
now. And it was the inroads of the British ministry 
upon the peculiar privileges of these Assemblies, I 
need not say, that brought about the Revolution. 

But this generous trust, reposed by our early Con- 
stitutions in the State legislatures, was abused. The 



54 THE FIRST CENTURY'S CHANGES 

watch kept over them in colonial days by royal 
governors, Boards of Trade, and proprietary inter- 
ests, was withdrawn, and the jealousy which over- 
threw these had supplied nothing adequate to fill 
their place. Reckless mismanagement of the public 
finances, particularly in the West and Southwest, 
soon followed, — mismanagement of which the conse- 
quences were often not developed for many years. 
State Banks were chartered, and their bills made 
receivable for taxes. State bonds were issued, and 
the proceeds sunk in public works, yielding no re- 
turn. Special privileges were granted to the friends 
of the leaders of the party in power : trading monop- 
olies; exemptions from taxation; power to corpo- 
rate organizations to contract on a mere semblance 
of capital ; statutes designed — under the guise of 
some general object — to affect a particular lawsuit 
pending in court. Appointments to ofifice became 
more and more engrossed by the legislature, and 
ofifices themselves were needlessly multiplied. Mu- 
nicipal corporations were given unnecessary powers 
of expenditure, and encouraged to lend their credit 
to canal or railroad enterprises, which were only 
called for by a spirit of speculation. It seemed as 
if almost any legislation had only to be asked, to be 
granted. 

A day of reckoning came. The disasters culminat- 
ing in the panic of 1837 gave a shock to American 
credit abroad from which it has never yet fully re- 
covered, but were not enough to wake our own 
people to a sense of their real danger. The few con- 
stitutional changes that it produced were a palliative 



IN OUR STATE CONSTITUTIONS 55 

rather than a preventive. It took another panic, 
twenty years later, and, more than this, the reaction 
since the Civil War, to show us and all of us where 
that danger lay, — that it was indeed in the very ark 
of the covenant; that those we had most trusted 
were to be trusted the least. 

It brought on at last a new order of things. In 
the Constitutions and constitutional amendments 
soberly framed during the last decade of the cen- 
tury under review, we see a wide departure from the 
theories of government so long and so unquestion- 
ingly accepted among us. 

The powers of the Executive are enlarged ; he is 
given the power to pardon crimes, which was before 
intrusted to the sympathies of a mass-meeting (for 
a legislative assembly, put to this use, deserves no 
better name). He is allowed to veto one or more 
items in an appropriation bill, and yet allow the rest 
to become a law. He is given the appointing power 
as to important ofhces, and is, perhaps, himself 
elected for two or four years instead of one. 

The terms of office of the judges have been length- 
ened ; their jurisdiction extended, perhaps to par- 
dons, perhaps to claims against the State, or to 
advising as to the validity of contemplated legisla- 
tion ; and any claim of judicial power by the legisla- 
ture, as for instance, over divorces, or contested 
elections, or testamentary succession, cut off. 

But while in general the judiciary has been strength- 
ened, there has been no hesitation in checking its 
authority wherever it seemed to have borne too hardly 
on the liberty of the individual. Thus a disposition 



56 THE FIRST CENTURY'S CHANGES 

is shown to limit the power of attachment for con- 
tempt; and Louisiana (1879) provides, in favor of 
witnesses, for the protection of " confidential com- 
munications made to medical men by their patients." 
The ancient provision in our original Constitutions, 
that justice shall be administered "withoiit sale, de- 
nial, or delay," has been found, in some States, to 
need a practical exposition of its meaning. In Geor- 
gia (1877) the Supreme Court is required to dispose 
of every case by the second term, and if the plaintiff 
in error be not prepared for argument at the first 
term (" unless prevented by Providential cause "), 
the judgment below is to stand afifirmed. California 
(1879) requires from her judges every quarter, be- 
fore their salaries can be paid, an affidavit that no 
case which has been submitted to them for over 
ninety days remains undecided. 

Inroads upon the jury system have commenced. 
Colorado (1876) gives power to the legislature to 
abolish grand juries and to reduce the panel, in civil 
causes, to any number less than twelve. Texas 
(1876) diminishes the grand jury to twelve, of which 
nine are a quorum ; and allows nine jurors in civil 
causes, and in prosecutions for misdemeanors, to 
return a verdict. CaHfornia (1879) also allows ver- 
dicts of nine jurors in civil causes. Georgia (1877) 
refuses a jury trial " in all civil cases founded on 
unconditional contracts in writing, where an issuable 
defence is not filed, under oath or aflfirmation ; " re- 
quires two verdicts from different juries, on two suc- 
cessive trials, as the condition of a divorce ; and 
allows juries of five in the minor courts. North 



IN OUR STATE CONSTITUTIONS 57 

Carolina (1876), though repeating her declaration of 
a hundred years before, in her original Constitution, 
that " in all controversies at law respecting property, 
the ancient mode of trial by jury is one of the best 
securities of the rights of the people, and ought to 
remain sacred and inviolable," proceeds to declare 
that " the distinctions between actions at law and 
suits in equity, and the forms of all such actions and 
suits, shall be abolished." This simplification of judi- 
cial process, while a thing highly desirable in itself, 
must, thus accomplished, make it far from easy in 
cases involving equitable rights to determine with 
precision whether a trial by jury may be demanded, 
and it will become less easy with every year, as the 
lapse of time obscures the recollection of the formal 
procedure, under the common law- 
While most of these changes indicate greater trust 
in the wisdom and discretion of the judiciary, the 
legislative department has been the subject of uni- 
versal attack. The chief design of most that was 
done in constitution-making for the last ten or twenty 
years of the century under consideration was to re- 
duce the field of statute law, and withhold from it 
every subject which it is not necessary to concede. 

Special legislation, as to any matters which a gen- 
eral law can fairly and reasonably cover, was prohib- 
ited. The Pennsylvania Constitution of 1873 may be 
taken as a type of most of the newer ones in this re- 
gard. It specifies about thirty classes of subjects as 
to which it forbids the passage of any " local or special 
law." Among them we find : regulating the aff"airs 
of municipalities, or chartering any particular one; 



58 THE FIRST CENTURY'S CHANGES 

changing the descent of property ; regulating judicial 
proceedings ; remitting penalties ; exempting from 
taxation ; regulating labor ; and chartering private 
corporations. And when local or special laws are 
necessary, the parties applying for them must give 
public notice, first, to all adversely interested. 

Another provision commonly found is that " no 
senator or representative shall, during the time for 
which he shall have been elected, be appointed to 
any civil office under this commonwealth." This 
strikes at the root of what few can have failed to ob- 
serve to be a very dangerous kind of favoritism. 
Where a legislature appoints to ofhce, it seldom fails 
to have among its own members applicants for every 
place, and a natural feeling of fellowship speaks power- 
fully in their favor. It is hard, also, to deny your 
vote to a man whose vote you may want for some 
measure to-morrow. In this way, where the legisla- 
ture appoints the judiciary, men from among its own 
members will often go upon the bench, who would 
never have been thought of for the position, had they 
been in private life. 

Fourteen States originally gave the appointment 
of the judges to the legislature. All but four of these 
(Connecticut, Rhode Island, South Carolina, and 
Virginia) became satisfied that this method is a dan- 
gerous one, and discarded it; and a Constitutional 
amendment to the same effect, emanating from the 
State Bar Association of Connecticut, was approved 
by its General Assembly in 1879, and ratified by the 
people in 1880.^ 

^ It placed the power of nomination in the hands of the Governor. 



IN OUR STATE CONSTITUTIONS 59 

Where to place the power thus taken from the 
legislature has proved one of the most puzzling ques- 
tions in American politics ; but the general drift has 
been towards popular elections. Twenty-four States 
followed this mode in 1879, only eleven of which 
originally adopted it. Thirteen States, at first, gave 
the appointing power to the Governor, either alone 
or with the concurrence of a council or other advisory 
body: nine States, only, then vested it in that man- 
ner. A Constitutional amendment proposed by the 
New York Legislature, in 1873, to return to this plan 
— the original mode in that State — was defeated by 
a popular vote of nearly three to one. 

The feeling seems to be, not that the people can 
choose more wisely than the legislature, but that 
they will choose more honestly. A few years before 
the change of system in Connecticut, a letter was 
incautiously dropped in the street, in Hartford, which 
had been sent by one member of the General Assem- 
bly to another. The person addressed was an active 
friend of a certain candidate for judicial honors, and 
the writer was desirous of the place of State Prison 
director. Without any circumlocution he wrote : 
" If you will support me for State Prison director, I 
will vote for your man for Judge of the Superior 
Court." Such bargains ought to be, not merely dis- 
graceful, but impossible. 

It is easier to circumscribe the appointing than the 
removing power. An amendment to the New Hamp- 
shire Constitution, prohibiting any removal from office 
for political reasons only, was sanctioned by the legis- 



6o THE FIRST CENTURY'S CHANGES 

lature, but defeated before the people, in 1877, re- 
ceiving a little less than the two-thirds vote required 
for its ratification. 

A seat in the Senate of the United States has, 
since the Civil War, acquired new dignity, with the 
steady increase of the powers conceded to the general 
government. Once thought inferior in position to 
the governor of his State, a senator now occupies a 
place of far greater consideration. The composition 
of the legislature which is to choose one is a subject 
of special interest on that account. At every stage in 
the nomination and election of its members the friends 
of the leading senatorial candidates take an active part^ 

Nebraska in 1875 initiated a movement which has 
since found more appropriate expression in a propo- 
sition to amend the Constitution of the United States 
by transferring the election of senators from the leg- 
islature to the people. The Nebraska plan was by 
an amendment of her own Constitution, authorizing a 
law to the effect that at the State election next pre- 
ceding the expiration of the term of any United 
States Senator, " the electors may, by ballot, express 
their preference for some person for the office of 
United States Senator." Such a vote would, of 
course, be preceded by a nomination by each party 
at a State convention, — a nomination which, if con- 
firmed by the electors, the majority in the legislature 
could not venture to disregard.^ 

1 Mr. Schouler, in his " Constitutional Studies " (p. 108, note), calls 
attention to the fact that this has already been practically tried, with 
success, more than once in Illinois. 



IN OUR STATE CONSTITUTIONS 6i 

Changes have been found necessary in the mode of 
transacting legislative business. 

The right to call for the yeas and nays has been 
extended. In Pennsylvania they can be demanded 
by any two members in either House. 

Great trouble had arisen from the passage of bills 
which had been so altered by insidious amendments, 
after leaving the committee, as to destroy their origi- 
nal purpose, — perhaps to accomplish the contrary, 
while the title might remain unchanged, and, like false 
colors, serve only to mislead. This has been met by 
provisions that no bill shall be so altered on its pas- 
sage as to change its purpose; nor voted upon until 
printed as amended ; nor unless read, at length, three 
times on as many different days ; and that the vote 
on every amendment, and on the bill itself, must be 
taken by yeas and nays, and the result show a major- 
ity of all the members of each House, present and 
absent, in its favor; also that no bill, except general 
appropriation bills, shall contain more than one sub- 
ject, which shall be clearly expressed in its title. 

The vote upon every measure must, of course, 
largely be governed by the statements of the chair- 
man of the committee, or other member, having it in 
charge. But it seems to have been found prudent to 
trust to what he says no more than is necessary to 
secure the prompt transaction of business. If the 
title of the bill truly describes its only purpose, the 
most ignorant member may at least know the nature 
of the subject under consideration ; and, where the 
bill is one of amendment, he is aided by another of 
these new safeguards, — that so much of the old law 



62 THE FIRST CENTURY'S CHANGES 

as is amended shall be printed, at length, as it will 
read in its amended form. 

The most dangerous bills are generally hurried 
through at the close of the session, when there is no 
time to discuss or even to examine them. To meet 
this difficulty, Arkansas provided in her Constitution 
of 1874 that " no new bills shall be introduced into 
either House during the last three days of the 
session." 

Corruption in elections has become almost as fa- 
miliar in some parts of our country as it once was in 
England. It was formerly enough for the members 
of the legislature to swear fidelity to the Constitutions 
of the State and the United States. By 1879 our 
Constitutions began to exact a further oath that they 
had not paid or promised anything for their election, 
and that they would not directly or indirectly receive 
anything to influence or recompense their official 
acts. Violation of this oath is perjury, — that is, a 
State prison offence. 

Back pay and extra compensation of every sort 
are generally forbidden. Congress in 1873 gave a 
useful object-lesson on that subject. 

State aid or gratuities, except for military services 
or pensions; loans of public credit; municipal sub- 
scriptions or guarantees to private enterprises or local 
improvements ; grants to religious organizations, — 
all these are to be known no more. 

Great Britain has found it necessary to guard 
against profuse expenditures and grants by her colo- 



IN OUR STATE CONSTITUTIONS 63 

nial legislatures by measures yet more stringent. In 
the Union Act creating the Dominion of Canada 
(1867) it is provided that " it shall not be lawful for 
the House of Commons to adopt or pass any vote, 
resolution, address or bill for the appropriation of any 
part of the public revenue, or of any tax or impost, 
to any purpose that has not been first recommended 
to that House by message of the Governor General at 
the same session." 

The Constitution of Louisiana of 1879 prohibits the 
contracting of any State indebtedness, " except for 
the purpose of repelling invasion, or for the suppres- 
sion of insurrection." 

In the last (and sixth) Georgia Constitution (1877) 
" lobbying is declared to be a crime." No definition 
of the offence is attempted, and I fear that none was 
necessary. 

Corporations necessarily form the greatest subject 
of legislation, for they represent, probably, four-fifths 
of the wealth and industry of the country, apart from 
lands occupied as homesteads. 

When the first State Constitution was adopted, 
there was probably not one business corporation with 
a moneyed capital in the whole country. At the pres- 
ent time there must be fifty thousand. Their general 
character of perpetuity, and the limited liability of 
their stockholders in case of insolvency, fit them well 
for the demands of American life. But the energy 
and persistence with which they concentrate power, 
in the prosecution of new enterprises, are no less irre- 
sistible when directed to the attainment of any legis- 



64 THE FIRST CENTURY'S CHANGES 

lation, in which they may find their profit. Their 
directors and presidents fill our senates, and their 
stockholders and employees are prominent in the 
lower house. Unless the Constitution sets up some 
barrier, there are few favors which organizations so 
powerful can seek in vain. But almost all corpora- 
tions of the same class, or business character, can be 
conducted under the same rules. Instead of a spe- 
cial charter for every railroad — three-fourths of which 
must be a mere repetition of provisions found in every 
other — the modern Constitution makes imperative 
the adoption of the plan of general railroad laws, 
under which any set of men, with the necessary capi- 
tal to build a new road, may obtain the authority 
to go forward with the work. The same is true of 
banks; of insurance companies; of manufacturing 
concerns. Let the legislature thus lay down a few 
general limitations, as to the amount of capital, the 
powers that may not be exercised, the transfer of 
shares, inspection by State officials, and annual re- 
turns, and a thousand corporations may organize 
themselves in a year, without burdening the stat- 
ute books with useless charters, or besieging the 
State house with requests for special privileges or 
concessions. 

In constituting the capital of these associations, 
watered stock, and stock issued for gratuities, or 
otherwise than for actual value, are by many of the 
later Constitutions made void. The consolidation of 
rival railroads or canals is forbidden. Railroad rings 
are prohibited ; so are free passes. 



IN OUR STATE CONSTFrUTIONS 65 

The right of legislatures to prescribe the maximum 
charges for freight and passenger rates on railroads, 
affirmed by the Supreme Court of the United States 
in the " Granger Cases," ^ has been made a duty in 
several of the States. The Constitution of California 
(1879) went a step farther, in assuming to prescribe 
what servants and agents corporations might, or rather 
might not, employ. It laid down an absolute pro- 
hibition against their use of Chinese labor. This — 
though designed as an attack upon the employed 
rather than the employer — was rested on the police 
power, and had it not been for the Fourteenth Amend- 
ment to the Constitution of the United States, would 
perhaps have been defensible, in the absence of 
any treaty obligations to the contrary, on the same 
grounds as the granger railroad laws. 

Corporations are mere creatures of the legislative 
power, with such rights and franchises only as the 
legislature may choose to concede, and these — if 
their charters are drawn in the usual form — revo- 
cable at pleasure. They are not citizens of the State, 
or of the United States, so far as respects the consti- 
tutional guarantees of the privileges and immunities 
of citizens of either government. We have long been 
familiar with laws forbidding the employment of 

1 Munn t/. Illinois, 94 United States Reports, 113; Chicago, Bur- 
lington, and Qiiincy R. R. Co. zf. Iowa, zh'd. 155. This right has since 
been declared to be limited by the duty of the State to respect 
vested rights and the obligation of contracts, so far that it cannot 
impair the security of railroad creditors by reducing rates below a 
point at which the road can fairly earn the interest on its obligations. 
Reagan v. Farmers' Loan and Trust Co., 154 United States Reports, 
362. 

5 



66 THE FIRST CENTURY'S CHANGES 

children, under a certain age, in mills. Why not, 
California asked, as well extend the exercise of the 
police or regulative powers of the State so as to ex- 
clude laborers of a certain race or country? 

The courts, however, pronounced against this pro- 
vision as a denial of that equal protection of the laws 
which the Fourteenth Amendment guaranteed to 
every person within the jurisdiction of a State, as well 
as an infringement of the Burlingame treaty.^ The 
results aimed at by California have since been largely 
accomplished through Congressional legislation. 

The precedents of the English common law allowed 
no compensation to be recovered from one who had, 
either wilfully or negligently, been the cause of an- 
other's death. For this — so contrary to the dictates 
of common-sense, and to the maxims of most other 
civilized and tmcivilized nations — the only reason to 
be given was that human life was beyond price, and 
could not be measured by money. The frequent 
losses of life by railway and steamboat accidents early 
led to statutes, both in England and America, giving 
a right to compensation, in favor of the family of the 
deceased. The corporations most interested could 
not prevent the passage of such Acts, but they did 
succeed, generally, in limiting the right of recovery 
to $5,000. In most of our States, therefore, it has 
been cheaper to kill a man outright than merely to 
maim him. A Massachusetts physician, whose pro- 
fessional prospects were ruined by a railway accident, 
which left him a paralytic, recovered $39,000 dam- 

1 In re Parrott, i Federal Reporter, 481. 



IN OUR STATE CONSTITUTIONS 67 

ages from the Eastern Railroad. Had he died from 
the shock, I presume they would have escaped with 
$5,000. The Constitution of Pennsylvania forbids 
any law fixing the limit of compensation in actions 
for any personal injury.^ 

No charters had been more abused — particularly 
in the Southwest — than those of banks. Texas, in 
her Constitution of 1876, — willing, apparently, to 
leave this business to be regulated exclusively by the 
United States, — declares that " No corporate body 
shall hereafter be created, renewed, or extended, with 
banking or discounting privileges." New Jersey, a 
year before, had provided that no bank charter should 
be passed, or amended, except by a vote of three-fifths 
of all the members elected, in each house ; and that 
none should be granted for more than twenty years. 
Two States, which had suffered much from failing 
banks, Missouri (1875) and Louisiana (1879), made it 
a crime for any bank officer to receive deposits or 
negotiate loans with knowledge that the institution 
was insolvent. California makes stockholders in every 
corporation liable to its creditors to an amount pro- 
portioned to the stock owned by each, and gives a 
remedy against the directors for all embezzlements 
by officers or agents of their appointment. 

We all know how frequently corporations are 
organized to do business in another State ; and as a 
general rule, the farther they go from home, the less 

1 That of New York adopted twenty years later contained a 
similar provision. 



68 THE FIRST CENTURY'S CHANGES 

capital they carry, and the less morality as well. 
Most of the mining companies in Colorado and 
Nevada are chartered in New York and New Eng- 
land. Their capital is a mining right, valued at a 
million or two, and worth, probably, less than noth- 
ing, because it involves quite an outlay to find out 
that it is worthless. Such a corporation, organized in 
New York, to do business in Connecticut, was finally 
wound up there by bankruptcy proceedings. It had 
a capital of $250,000, all paid in, on paper; but when 
the truth came out, it appeared that an irresponsible 
man had given his own note for $500 for a license to 
dig for barytes on a certain farm, for 99 years, subject 
to a royalty of so much a ton for all he got out, and 
that the stock was issued to the maker of the note, as 
the price of a transfer of this lease or license, the cor- 
poration assuming the payment of the note upon 
itself, and selling enough of its own stock, to outside 
parties, to meet it. As such corporations cannot be 
sued, ordinarily, out of the State which charters 
them, our new Constitutions provide for suing them 
in the State where they do business. 

Most of our Constitutions have referred to the sub- 
ject of taxation with some such general declaration, 
only, as that taxes should be equal and uniform. 

California was, I believe, the first to declare in terms 
that all property must be taxed, and to attempt to 
describe in detail the items of which property may 
consist. This was the cause of much of the opposi- 
tion to the ratification of her Constitution, but I fail 
to see how these provisions go farther than the 



IN OUR STATE CONSTITUTIONS 69 

statutes on this subject under which many of our 
States have been governed for centuries. It may be 
unwise to elevate such a rule of administration — 
disapproved by so many economists — beyond the 
reach of legislative amendment or repeal, but it is 
not communism. 

In one respect we see an apparent increase of 
legislative power, or dignity. The sessions of the 
legislature are generally made biennial, thus doubling 
the terms of office of its members. There are but 
ten of the States which have not moved in this direc- 
tion. But the controlling object of this change is to 
lessen legislation, by taking away half its opportun- 
ities. Though the representatives are elected for two 
years, they are paid for but one year's work, and are 
not likely to do more at their own expense. 

As to the right of suffrage, a few attempts were 
made, within the last twenty years or so of the cen- 
tury under review, to create restrictions in the way of 
education, or tax-paying. Pennsylvania, Massachu- 
setts, Tennessee, and Georgia, required every voter to 
be a tax-payer. A similar measure was submitted to 
the people in Maine in 1878, but failed of adop- 
tion. Rhode Island, which had always denied suf- 
frage to foreign-born citizens of the United States, 
unless they owned real estate to the value of $134, 
refused in 1 871, by an emphatic vote, to change its 
policy. Massachusetts denies a vote to those who 
cannot read and write ; Connecticut to those who can- 
not read. 



70 THE FIRST CENTURY'S CHANGES 

Female suffrage in school elections, coupled with 
the right to hold office on school boards, was author- 
ized in Minnesota in 1875. Pennsylvania, in 1873, 
made women eligible to any office of control or 
management respecting schools, but did not give 
them the right to vote. Colorado, in 1876, authorized 
the submission to the people, for their ratification, of 
a law conceding to women the right to vote (but not 
to hold office) at all elections, on the same terms as 
men. The law was accordingly framed in 1877, but 
was rejected by a large majority. 

A few of the older Constitutions excluded Roman 
Catholics and infidels from public office. New 
Hampshire was the last to retain this religious test, 
and abolished it in 1877. 

The great object of all laws and Constitutions is to 
guard the weak and protect minorities. 

In the regulation of private corporations, several of 
the more recent Constitutions provide that any 
stockholder may cumulate his votes in the election 
of directors ; that is, if he has ten votes to give, and 
there are five directors to be elected, he may give 
ten to each of five candidates, or fifty to one candi- 
date, or twenty-five each to two candidates. 

Illinois extended this principle to her State elec- 
tions for representatives in the legislature. Every 
district sends three, and every elector may cumulate 
or divide his three votes at his pleasure. In prac- 
tical operation, the scheme is charged with this de- 
fect : that the best men get the fewest votes, because 
every one thinks that they are sure of a majority 



IN OUR STATE CONSTITUTIONS 71 

without his aid; while the more ignorant voter, 
unfamiliar with processes of calculation, is likely to 
be, more than ever, the mere tool of the party man- 
agers. Its friends, however, claim [I think with 
reason] that, on the whole, it results in the nomina- 
tion of better candidates, as well as in a fair represen- 
tation of the represented. 

The old way was to give the legislature almost 
unlimited power as to the canvass of elections. It 
has been found, however, too partisan a body for the 
task, and the tendency now is to leave such questions 
to the courts, and to ensure an honest investigation 
there by numbering the ballots, and placing on each 
the name of the man who casts it. This is, in sub- 
stance, the mode adopted by the English election bill 
of 1872. 

The impress of Northern sentiments on the South- 
ern mind, as to matters wholly aside from politics or 
sectional differences, we find strongly marked in 
several of the recent Constitutions. 

The time is not far distant when the custom of 
duelling was a general social law in the Southern 
States. But in every one of them it was by 1879 
restrained by a Constitutional provision. 

Louisiana in that year, which, so late as 1864, pro- 
vided in her Constitution for licenses to lottery-dealers 
and gambling-houses, after prohibiting lotteries sub- 
sequently to 1895, proceeded to say, with much of 
the old Puritanic commingling of the notions of 
crimes and sins, " Gambling is declared to be a vice. 



72 THE FIRST CENTURY'S CHANGES 

and the General Assembly may enact laws for its 
suppression." 

Public schools, at public expense, is another North- 
ern and New England institution which planted itself 
in all the Southern Constitutions soon after the war, 
less perhaps as a measure of expediency, or right, 
than of necessity, in view of the extension of suffrage. 
Georgia (1877) expressly confined her common-school 
instruction to " the elementary branches of an English 
education only." 

North Carolina, in 1876, provided that a law might 
be made compelling every child between six and 
eighteen, unless otherwise educated, to go to a public 
school for at least sixteen months. Similar legisla- 
tion was long ago obtained in some of the Eastern 
States, without the aid of any constitutional provision. 

State universities are becoming more common. 
Texas (1876) provided that "The legislature shall, as 
soon as practicable, establish, organize, and provide 
for the maintenance, support and direction of a Uni- 
versity of the first-class," and that they " shall also, 
when deemed practicable, establish and provide for 
the maintenance of a college or branch University for 
the instruction of the colored youths of the State." 
Georgia provided for State aid to the University of 
Georgia, and also to some one college or university 
for persons of color. Louisiana (1879) directed grants 
to her State University to the extent of not over 
$10,000 a year, and required the establishment of a 
university for persons of color, and an annual appro- 
priation of not less than $5,000 nor over $10,000, for 
its maintenance. 



IN OUR STATE CONSTITUTIONS 73 

We see in our recent Constitutions a general ten- 
dency in favor of the debtor class. In many of them 
imprisonment for debt is expressly abolished, except 
under circumstances of fraud. In many, the legisla- 
ture is enjoined to pass " liberal " homestead and ex- 
emption laws, or else these exemptions are expressly 
defined and granted. 

So far as such provisions take away the remedy of 
a creditor to collect pre-existing debts, the Supreme 
Court has told us that they are void ; but as to 
future debts, contracted after their adoption, the ex- 
emptions are effectual. There are economists who 
claim that society should afford no remedy for the 
collection of debts, leaving men to give credit at their 
own risk. In this way, it is argued, trade will be 
healthy and unforced ; rogues must work, because 
no one will trust them ; prices will be uniform, be- 
cause the profit need include no margin for bad 
debts ; and commercial panics will be unknown. The 
exemption laws of some of our Southern and Western 
States, which secure to an insolvent debtor his farm 
and stock, his furniture and library, free from any 
claim of creditors, will go far to demonstrate the truth 
or falsity of these positions. 

Texas gave unlimited protection to every wage- 
earner, by the provision in her Constitution of 1876 
that " No current wages for personal service shall 
ever be subject to garnishment." 

Forbidding taxation by municipalities, or even by 
the State, beyond a certain per centum, is another 
bulwark for debtors which has found place in several 



74 THE FIRST CENTURY'S CHANGES 

of the recent Constitutions. Too often it is but an 
indirect way of commencing or enforcing the policy 
of repudiation, which now disgraces the records of so 
many of our States. Louisiana, in 1874, by a consti- 
tutional amendment, sanctioning a legislative Act, 
refunded her debt, by a compulsory process, into new 
consolidated seven per cent bonds, for sixty per cent 
of the amount of the old ones ; and declared the new 
issue to be a valid contract " which the State shall by 
no means and in no wise impair ; " and that to secure 
the levy and collection of the taxes required to meet 
the interest and principal, " the judicial power shall 
be exercised when necessary; " and that these taxes 
should be annually assessed and collected, and the 
payments made, without any further legislative appro- 
priation. But in July, 1879, the Constitutional Con- 
vention framed an ordinance, declaring — as if the 
State were the creditor instead of the debtor — that 
the interest on these scaled bonds shall " be and is 
hereby fixed at two per cent, per annum for five years 
from the first of January, 1880; three per cent, per 
annum for fifteen years, and four per cent, per annum 
thereafter ; " and " that the coupons of said consol- 
idated bonds falling due on the first day of January, 
1880, be and the same is hereby remitted, and any 
interest tax collected to meet said coupons is hereby 
transferred to defray the expenses of the State gov- 
ernment." 

The rash incurring of municipal indebtedness re- 
ceived a check in Texas, in 1876, by resort to a 
means quite opposed to the usual course of modern 
government. The Constitution adopted in that year 



IN OUR STATE CONSTITUTIONS 75 

provides that while all qualified electors of city or 
town can vote for all municipal officers, " in all elec- 
tions to determine expenditure of money, or assump- 
tion of debt, those only shall be quahfied to vote who 
pay taxes on property in said city or incorporated 
town, pivvided that no poll tax for the payment of 
debts thus incurred shall be levied upon the persons 
debarred from voting in relation thereto." New 
York, two years later, rejected a similar proposition, 
recommended by a commission of marked ability, 
appointed to frame a general law for the government 
of cities.^ 

The prohibition of the liquor saloon, which had 
been decreed by statute with varying success before 
the war, by several States, was reinforced by the 
Constitution of Georgia in 1877, as regards sales 
within two miles of any voting precinct on the day of 
any public election. 

The same State (1877) protected marriage by 
making it the condition of a divorce that the peti- 
tioner must obtain a verdict from a jury in his favor 
at two different terms of court. 

As literary productions, many of the more recent 
Constitutions compare unfavorably with their pre- 
decessors. 

They are more wordy. They often descend into 
what seems a pettiness of detail. Some are so hastily 
thrown together as to be absolutely slovenly. In 
Louisiana, for instance, — a State whose jurists have 
always been noted for the elegance of their taste and 
1 Hitchcock, on American State Constitutions, 28. 



76 THE FIRST CENTURY'S CHANGES 

scholarship, — we find an entire article repeated and 
re-enacted, word for word, as part of a later one. 

Occasionally we meet a section which for its 
grandiloquence of expression might have been sug- 
gested by the Hon. Elijah Pogram, Vices of style, 
however, are a pardonable fault in the legislation of a 
country where the administration is not responsible 
for the form of statutes. They deface the laws of the 
United States to an extent unequalled by anything to 
be found in all our State Constitutions put together. 
The Civil Rights Bill, enacted by Congress in 1875, 
for instance, commenced with a preamble, declaring 
that it is " the appropriate object of legislation to 
enact great, fundamental principles, into law," pre- 
cisely the thing which, I should rather say, is the last 
object of legislative enactment in a free government, 
because they are, of themselves the highest law, and 
the very touchstones by which we test the validity of 
every statute. One of them, indeed, proved fatal to 
this very Act.^ 

Texas, as has been said already, has lived to wear 
out three Constitutions and take on a fourth. The 
first (of 1845) covers sixteen of the large pages of 
Poore's " Charters and Constitutions " ; the second 
(of 1866) takes a page more ; the third (of 1868) ex- 
tends over twenty-two pages ; and that adopted in 
1876 occupies thirty-two. 

The Colorado Constitution of the same year was 
nearly as long. 

Both these States illustrate in their work the in- 

^ It was declared invalid by the Supreme Court of the United 
States, in the Civil Rights Cases, 109 United States Reports, 3. 



IN OUR STATE CONSTITUTIONS 77 

creasing tendency to descend to the details of govern- 
ment, and tie the hands of the legislature at every 
point where danger can be anticipated from the mis- 
use of power. Missouri, until 1855, had imposed but 
three express restrictions upon the law-making author- 
ity. By 1875 she had created thirty-three.^ 

There is a point beyond which it is unreasonable 
and unsafe to carry this jealous supervision of future 
legislatures. The great principles of human action 
vary little, but their application to the affairs of daily 
life changes at a thousand points with every genera- 
tion and every decade. Unquestionably there are 
many superfluous pages in the long drawn out Con- 
stitutions of modern date, like those of Texas, Colo- 
rado, and Georgia; and there are in them many 
articles worse than superfluous. 

The rule of Georgia, for instance, that costs in her 
Supreme Court shall not exceed ten dollars until 
otherwise provided by law, and that a poor man may 
appeal to it without liability to costs at all, has so 
flooded it with petty cases that there is scant oppor- 
tunity to hear argument on any, or for that full con- 
sultation in all before judgment, by which justice is 
commonly best served. 

The demagogue has, of late years, too often found 
his way into the constitutional convention. We have 
been more fortunate in escaping the influence of the 
political theorist and doctrinaire. 

Here and there, but rarely, we observe his hand. 
Thus, in Alabama, in 1867, the legislature was 
1 Hitchcock, on American State Constitutions, 35. 



78 THE FIRST CENTURY'S CHANGES 

directed to frame " a penal code, founded on prin- 
ciples of reformation." In her Constitution of 1875 
this section disappeared. 

This is but one of several instances, which a com- 
parison of these two instruments discloses, of that 
vacillating spirit which grew with the century, and 
not infrequently led the constitutional convention of 
one year to adopt what a similar body in another, 
not very distant, would discard. In the Declaration 
of Rights in the Alabama Constitutions both of 1865 
and 1867, the State was made liable to suit in her 
own courts: in that of 1875 it was provided that she 
should never be made defendant in any court of law 
or equity. The last Constitution also prohibited for- 
ever the imposition of any educational qualification 
for suffrage. A few years later public sentiment 
changed upon this point, and it seems probable that 
before long Alabama will range herself, on this point, 
with Mississippi and South Carolina, Massachusetts 
and Connecticut. 

It is a redeeming feature of our American Consti- 
tutions that they deal so little in theoretical and un- 
settled questions of polity or jurisprudence. We can 
afford to experiment in our statute laws. If faulty in 
operation, they are easily repealed or amended. But 
our Constitutions should present no principles on 
which men, of the same generation at least, can hon- 
estly differ in opinion ; none which are within the 
reach of ordinary change. 

Such was certainly their original scope and frame. 
The many recent amendments of which I have 
spoken are the witness of a new epoch. The times 



IN OUR STATE CONSTITUTIONS 79 

have changed, and Constitutions have changed with 
them. But, as we compare the modifications thus in- 
troduced in our plans of internal government with 
those of the other great powers of Christendom dur- 
ing the century, we shall not find ourselves the great- 
est innovators. Rather may we take an honest pride 
in observing how few steps we have found it neces- 
sary to retrace, and how the good sense and good 
morals of our people have, on the whole, been ade- 
quate to keep in check every new tendency to cor- 
ruption or injustice. 



CHAPTER IV 

ABSOLUTE POWER, AN AMERICAN INSTITUTION ^ 

THE form of every government and the powers 
which it may exercise must rest either on the 
will of the governing authority or the consent of those 
who are its subjects. Political absolutism may be 
built up on either of these foundations. It exists 
whenever those who are governed are for the time 
under the dominion of a power which they cannot 
control, and which knows no limits but those of per- 
sonal discretion. 

The United States of America were created by the 
consent of the people of the United States. They 
were not to be, however, the only subjects of the na- 
tionality which they thus constituted. They had the 
power to make, and they did make, subjects also out 
of certain States, previously sovereign, independent, 
and self-governing. The people of each State, acting 
in concert with the people of all the rest, transferred 
to the United States part of its former sovereignty, 
and put it so far under the power of the new nation. 

This power was limited by the Constitution of the 
United States, for the time being, to certain matters 

1 In discussing this topic, free use has been made of addresses de- 
livered by the author before the Georgia State Bar Association, at 
Warm Springs, Georgia, July 1, 1897, and the American Social 
Science Association, at Saratoga, N. Y., Aug. 30, 1897. 



ABSOLUTE POWER 8i 

particularly stated. But there was also a provision 
for further amendments of that instrument, by which 
the range and scope of federal power might be at any 
time enlarged. It could never be extended to depriv- 
ing a State of its equal representation in the Senate,, 
nor for twenty years could it be exercised to suppress 
the slave trade.^ It could never destroy all the States, 
because without the States the United States could 
not exist. It probably could never be a warrant for 
dividing or consolidating any of the States, without 
their consent.^ It may also be assumed that the 
objects of the Constitution could not be varied from 
those stated in its preamble. 

But aside from these restrictions, what is there that 
an amendment of the Constitution could not effect? 

Such an amendment can be made at the instance 
of two-thirds of both houses of Congress, when rati- 
fied by the legislatures of three-fourths of the States ,* 
and however obnoxious it may be to the interests of 
the rest, it will be as to all alike the supreme law of 
the land. It will be this because the people of the 
United States in 1788 consented that what was then 
done by their unanimous assent (manifested by the 
concurring votes of their appointed organs, the con- 
stitutional conventions in each State) might after- 
wards, at any time and from time to time, be altered 
at the will of two-thirds of Congress and three-fourths 
of the State legislatures. They freely put themselves 
under the absolute control of these depositaries of 
the amending power; for to them had been univer- 

1 Constitution of the United States, Art. V. 

2 Ibid., Art. IV., Sec. 3. 

6 



82 ABSOLUTE POWER, 

sally and forever granted the right to speak for the 
whole people of the United States. Thenceforth that 
people had only two full, self-acting representatives 
in their system of government, who were directly 
responsible to them and all of them. One was the 
constitutional convention, to which the people of 
every State would send their delegates, for the pur- 
pose of proposing amendments. This was to be con- 
voked only on the application of the legislatures of 
two-thirds of the States. The other was the Presi- 
dent of the United States. 

There is no part of the legislation of his country 
that is not of interest to the American, but he is most 
of all concerned with that which is institutional in 
character, or has become institutional by the progress 
of events. Whatever in human government has at- 
tained a foothold where it seems to belong, and from 
which it can be dislodged by no ordinary change, has 
by that fact alone a title to regard. 

Laws may be passed and repealed in quick succes- 
sion; individuals may rise to positions of command- 
ing influence, only to be swept off in a moment into 
political oblivion by a sudden turn of party tide ; the 
rules of science, the inductions of philosophy, ac- 
cepted for ages, may, as some new door of Nature's 
laboratory is unlocked, shrivel into ashes before the 
issuing flame ; but in every land, civilized or barbaric, 
where a strong race has long made its home, there 
will be certain institutions of civil society, that have 
grown up to slow maturity, so rooted in the soil that 
they form part of the nation's life and make its his- 



AN AMERICAN INSTITUTION 83 

tory. Such an institution a century of use has 
brought into being for Americans, — an expression of 
republican principles in the form of absolute power. 

Among the constitutional governments now exist- 
ing in the world, the United States rank as the oldest 
but one. It is, indeed, fairly open to question if 
our place is not the first. Great Britain, since our 
Constitution was adopted, by her union with Ireland 
and the introduction of a hundred Irish members into 
her House of Commons, followed by the Reform 
Bill and the recent Franchise Acts, has essentially 
changed the character of that body, and transformed 
a monarchy into a representative democracy ; while 
the new name of Empress of India given to her titu- 
lar sovereign seems but to mark the abandonment of 
her ancient colonial policy, — too mild for an oriental 
race, too rigorous for the great English-speaking 
dominions that have risen up under her flag to 
gain for themselves, one after another, substantial 
autonomy. 

The United States are the offspring of a long-past 
age. A hundred years, it is true, have scarcely passed 
since the eighteenth century came to its end, but no 
hundred years in the history of the world has ever 
before hurried it along so far over new paths and into 
unknown fields. The French Revolution and the 
first empire were the bridge between two periods that 
nothing less than the remaking of European society, 
the recasting of European politics, could have brought 
so near. 

But back to this eighteenth century must we go to 



84 ABSOLUTE POWER, 

learn the forces, the national ideas, the political the- 
ories, under the domination of which the Constitution 
of the United States was framed and adopted. There 
is something in that instrument that gave it coherence 
and vitality; something on which we have built up 
institutions that are real, traditions that are imperious, 
a national life that is organic, a national history of 
which no civilized man is wholly ignorant, a national 
power that is respected on every sea. What is it that 
has brought us on so far, and given us an undisputed 
place among the great powers of the world ? Is it a 
broad land and a free people, equal laws and univer- 
sal education? Yes; but how are those laws admin- 
istered? How are the forces of this great government 
that rules from sea to sea across a continent directed 
and applied? How, and by whom? 

I think it may be fairly said that of the leading 
powers of the world, two, only, in our time, represent 
the principle of political absolutism, and enforce it 
by one man's hand. They are Russia and the United 
States, 

The Czar of Russia, indeed, stands for Russia in a 
broader sense than that in which we can say that the 
President of the United States stands for them. The 
people of the United States have not put all their 
power in the keeping of all or any of their temporary 
rulers. They are the sleeping giant, that sleeping or 
waking is a giant still. Their word is still the ultimate 
rule of conduct — their written word. But when they 
gave their assent to the Constitution of the United 
States, they created in it the office of a king, without 
the name. 



AN AMERICAN INSTITUTION 85 

They set the key also, by this act, for our State 
governments and municipal governments. 

The royal prerogative of pardon, which belongs to 
the President without limits, except in cases of im- 
peachment, has been given to one after another of 
the governors of our States. Their appointing 
power is like his; their veto power is like his. Of 
the statutes passed in 1897 by the legislature of 
New York, nearly one-third — in all, over five hun- 
dred — failed of effect for want of the Governor's 
approval. 

In city governments the authority of the mayor 
has been continually increased. He is held per- 
sonally responsible for a fair and honest administra- 
tion of municipal affairs, and each department under 
him is coming to be under the direction, not of some 
non-partisan board, but of one man, removable at 
the mayor's will, and taking his instructions from 
him. 

But it is in the federal government that political 
absolutism is most deeply seated. Absolutism natu- 
rally follows centralization, and that belongs espe- 
cially to the nation. 

In form, at least, there is less of national character 
in our executive than in our judicial department. 
The judges of the United States have no relation 
to the States, except that the Senate of the States 
must confirm their nominations. The President, on 
the other hand, is chosen by the votes of local elec- 
tors, appointed by each State for itself, and meeting 
separately in distant capitals. Three of these elec- 
toral votes are forever secured to the smallest State, 



86 ABSOLUTE POWER, 

so that a President may be — as, in the case of 
Hayes, a President was — elected by a majority in 
the electoral colleges, when the opposing candidate 
received the approval of a majority of the whole 
people. So, again, should the electoral colleges fail 
to make a choice, the States come together to take 
their place, like so many sovereign powers in an 
imperial diet; each casting in the House of Repre- 
sentatives an equal vote. 

But, once elected, the President, during half the 
year, is the United States more truly than ever Louis 
XIV. was France. 

Our people had tried, during the Revolution and 
after the Revolution, the experiment of a confed- 
eracy without an executive head. They knew the 
evils of a weak administration, and they were deter- 
mined to have an energetic one. They were ready 
to pay the price by submitting to a system of per- 
sonal government. 

Had there not been, in 1787, a person at hand, to 
whom all eyes were turned with unfaltering trust, it is 
more than doubtful whether the Constitution, as thus 
framed, could have been ratified. Had they fully un- 
derstood the great powers with which it invested the 
President, it is certain that it never would have been. 

Hamilton and Madison, in the Federalist, minimized 
these powers to conciliate popular support. It was 
in truth impossible to predict beforehand what they 
were to prove. Pinckney, at the close of the con- 
vention, spoke of the new President as an officer of 
" contemptible weakness and dependence." Jeffer- 
son, on the other hand, wrote from Paris that he 



AN AMERICAN INSTITUTION 87 

seemed "a bad edition of a Polish king," and would 
contrive to hold his power by successive re-elections 
for life. Between these views time was to decide. 

A constitutional government is not constructed in 
a day. A constitution may be ; but it is born into 
the world a helpless babe, to be nurtured and re- 
created by its environment and associations. Consti- 
tutions do not make history. History makes them. 
They may, indeed, be constructed in a day, but they 
cannot be construed in a day. The men who put 
such a document together do not know, cannot know, 
the meaning of their own work. It is what it comes 
to be. It is what later generations make it. 

Plato tells us in his "Republic" that governments 
must change with every change in the character of 
those who constitute the political society, and in their 
relative conditions of life. 

If we think of the United States as they were in 
1787, occupying a narrow strip of the Atlantic sea- 
coast; engaged only in agriculture; with no city 
larger than Utica or Savannah now is ; with capital 
still so far in the hands of individuals that there were 
probably less than twenty business corporations in the 
whole country; with mails carried through half the 
States on horseback and at irregular intervals, if at 
all, — all must agree that the President of such a peo- 
ple could not, except in name, be the same as the 
President of the United States of to-day. 

There were two theories of the executive before the 
convention of 1787. 

Sherman insisted that the executive magistracy was 



88 ABSOLUTE POWER, 

really nothing more than an institution for carrying 
the will of the legislature into effect, and therefore 
that it should be confided to one or more officials, as 
experience might dictate, appointed by that body and 
removable by that body. 

Madison contended for the other view, that the 
executive was a representative of the people, rather 
than of their legislators. 

During the century that has passed since then 
England, following the principle preferred by Sher- 
man, has reduced her sovereign to a mere representa- 
tive of the legislative will ; and we, following the 
principle preferred by Madison, have raised our 
executive to the position of an elective king, chosen 
by the people, and responsible only to them, — a king 
who, for a four-years term, rules in his own right. 

One of the most significant debates in the conven- 
tion of 1787 was that over the proposition to surround 
the President with an executive council. Had it been 
carried, and his will thus subjected in any measure 
to cabinet control, the very foundation of our govern- 
ment would have been changed. It is the absolute 
supremacy of the President within his sphere of 
executive action, responsible to his own judgment 
and to no other man's, that has been the mainspring 
of our political system. Custom and convenience 
have brought the heads of departments together, in 
the presence of the President, at stated meetings, for 
consultation, and, when he asks it, for advice. We 
call them members of the Cabinet; but they have, as 
such, no standing before the law. No sultan in the 
presence of his divan is as uncontrolled and absolute 



AN AMERICAN INSTITUTION 89 

as the President of the United States at a Cabinet 
meeting. Others may talk ; he, only, acts. 

It was an observation of Sir Henry Maine, that the 
success of the United States " has been so great that 
men have almost forgotten that if the whole of the 
known experiments of mankind in government be 
looked at together, there has been no form of govern- 
ment so unsuccessful as the republican." ^ It was 
unsuccessful because it was always inefficient in emer- 
gencies ; because it had no political centre ; because 
no free people had been intelligent enough to know 
that a strong and stable government is the best 
government, provided it is first kept within narrow 
bounds, and then administered in the public interest. 

The first step towards strengthening the executive 
power was taken by the first Congress in its decision 
in favor of the right of the President to dismiss his 
subordinates at will. The Federalist had adopted 
the other view. The argument that if confirmation 
by the Senate were necessary to appointment it must 
also be necessary to removal, was logical ; but in 
politics practical considerations are often stronger 
than logical ones. The President is invested with 
the whole executive power of the United States. He 
is to be held responsible to the people for his execu- 
tive action. Justice then demands that he should 
have no agent in his service who has lost his confi- 
dence; no man on whose judgment he must rely, yet 
whose judgment he distrusts. That this is his abso- 
lute right may now be considered as settled law.^ 

^ Popular Government, p. 202. 

2 Parsons v. The United States, 167 United States Reports, 324. 



90 ABSOLUTE POWER, 

In the form of constitution adopted by the Southern 
Confederacy in March, 1861, the President's power 
of removal was essentially restricted. It should 
have been; for the guiding principle of that short- 
lived government was to secure at every point where 
it was practicable the sovereignty of each State, 
and to yield as little as possible to the confederate 
authority. 

During the administration of Washington came 
another step in the development of the Constitution, 
in the act on his part which nearly precipitated us 
into a war with France. The President, by the Con- 
stitution, is to receive public ministers. It follows, 
said the first President, that I can refuse to receive 
them, or, if I find reason to be dissatisfied with them, 
can request their recall. Genet was recalled, at his 
request, and the beginning thus established of a long 
line of diplomatic precedent, which has made the 
voice of the President, as to foreign nations, the only 
recognized expression of the sovereign will of the 
United States. 

Federal taxation was no more popular under Wash- 
ington than it is under McKinley. It became neces- 
sary for the government to show its teeth, and in 1792 
was passed the first national militia law. In case the 
execution of the laws of the United States should be 
opposed in any State by combinations too powerful 
to be suppressed by the courts or marshals, it was 
made lawful for the President to call out the militia 
of the State, and should they refuse to act and Con- 



AN AMERICAN INSTITUTION 91 

gress not be in session, the militia of other States, in 
such numbers as he might think necessary. It was 
also provided that every able-bodied white male 
citizen, between eighteen and forty-five, with few 
exemptions, should be enrolled in the militia, and 
that the President should appoint an adjutant-general 
in each State to act as such, subject to the orders of 
the Governor. It was by virtue of these acts that 
Washington found the means to put down the Whis- 
key Rebellion in Pennsylvania; and while the general 
policy of Congress has since been to trench less on 
the military powers of the States, the militia of the 
United States, such as it is, has necessarily and always, 
when in actual service, been under the command of 
the President by constitutional right, and the Supreme 
Court have decided that it is for him alone to deter- 
mine when it is fit to call them out.^ 

So, in regard to our standing military and naval 
establishment, the orders of the President are always 
absolute. 

They may involve the pulling down or setting up 
the government of a State. Such was the effect of 
Presidential interposition in Dorr's Rebellion in Rhode 
Island, when the courts declared ^ that whichever 
government he recognized as the true and lawful one, 
they must respect. 

They may bring a sudden stop to combinations of 
labor, which have put great railroads at their feet, and 
the commerce of the country in peril. 

They may compromise our relations with foreign 

1 Martin v. Mott, 12 Wheaton's Reports, 19. 

2 Luther v. Borden, 7 Howard's Reports, i. 



92 ABSOLUTE POWER, 

powers, and even authorize an invasion of foreign 
territory or the blockade of ports ^ before Congress 
has declared the existence of war. 

And when a state of war is fully recognized, what 
limits can be assigned of the executive power? As 
it was practically administered during the civil war, it 
extended, in States that were not the seat of active 
hostilities, to domiciliary visits ; to arrests by military 
warrant; to refusals to obey writs of Jiabeas corpus 
issued by the State courts ; to trials by military courts, 
ending in decrees sometimes of exile, and sometimes 
of death. The courts and the bar, were at the time 
divided in opinion as to the question of right. The 
Chief-Justice of the United States denied that the 
President could suspend the privilege of the writ of 
habeas corpus where there had been no proclamation 
of martial law; but even he did not venture to enforce 
his decision by process of contempt. At this point 
Taney yielded before Lincoln, as Marshall had yielded 
before Jefferson as to the subpoena issued and dis- 
obeyed on the trial of Aaron Burr. Finally, after 
the close of the war, came the decision in Milligan's 
Case, annulling a sentence of death passed by a mili- 
tary commission, sitting in Indiana, for a political 
offence ; but a decision rendered by a divided court, 
four of the nine judges, with the then Chief-Justice at 
their head, holding that, in time of insurrection or 
invasion, the President might rule by martial law, 
when public danger required it and there was no 
opportunity for Congress to act, in any part of the 
United States, though not the actual seat of war, 
1 The Prize Cases, 2 Black's Reports, 635. 



AN AMERICAN INSTITUTION 93 

if he found the ordinary law inadequate for public 
protection.^ 

It was Macaulay's criticism of the Constitution 
and government of the United States that we were 
" all sail and no rudder." He uttered it in the first 
half of the century, that half divided for us by so 
wide a chasm from that now closing, — the chasm of 
the Civil War. 

No one who watched the progress of that great 
contest would have failed to see that there was rud- 
der, no less than sail. There was a rudder, and there 
was but one man at the helm. Lincoln's course may 
be commended or condemned, but this, at least, all 
must agree, that his personality dominated the course 
of political events during those stirring years from 
1861 to 1865. 

It was far from being a consistent course. The 
Constitution, on his accession to the presidency, did 
not seem to him the same thing that it grew in his 
mind to be, as the long struggle wore on. He came 
to feel, as he wrote in 1864, " that measures, other- 
wise unconstitutional, might become lawful, by be- 
coming indispensable to the preservation of the 
nation." This is a doctrine without limits, in the 
mouth of a military commander in time of war. It 
led him to the proclamation of emancipation, as im- 
perial a decree as that by which the Czar of Russia, 
in the same year, abolished serfdom in his dominions. 
We need not stop to ask whether this proclamation 
was a legal act. It is one of the great facts of human 
history; its practical consequences were immeasura- 

1 Ex parte Milligan, 4 Wallace's Reports, 2, 142. 



94 ABSOLUTE POWER, 

ble, and whatever else it accomplished, it demon- 
strated the absolute power of an American President, 
whether it be rightfully or wrongfully exercised. 

The observation of Macaulay which has been 
quoted was written not long after the hard-fought 
struggle, with its varying fortunes, between Jackson 
and the Senate of the United States. As late as 1835 
the Senate had successfully opposed his will in a 
matter which it was thought by many put the honor 
of the country at risk. Our relations with France 
had become strained by her long delay in paying an 
agreed debt. In President Jackson's annual message 
at the opening of the session in December, 1834, he 
recommended legislation to authorize reprisal by the 
capture of French vessels. France intimated that 
she was entitled to an apology for the tone of the 
communication. Jackson replied by threatening to 
recall our minister, and sent in a special message to 
Congress, in which preparation for war was suggested. 
Within a week the House of Representatives voted 
an appropriation of three millions, to be expended in 
whole or in part under the direction of the President 
of the United States for the public defence, should it, 
in his opinion, become necessary to do so, before 
their next winter's session. The Senate refused to 
concur. The general voice of the people blamed 
their caution, but Webster subsequently defended his 
vote against the measure by saying on the floor of 
the Senate that as for him he would agree to no such 
proposition were the guns of the enemy battering 
against the walls of the capitol, and that he had been 



AN AMERICAN INSTITUTION 95 

amazed at the action of the house in " rushing with 
such heedless, headlong trust, such impetuosity of 
confidence, into the arms of executive power." 

The growth of that power since then, and its growth 
since the Civil War as well, is illustrated by the very 
different reception given in 1898 to a similar sugges- 
tion, under quite similar circumstances, from Presi- 
dent McKinley. Without a special message, as the 
result of a private interview at the executive mansion 
between him and a few of the leaders of the party in 
power, Congress unanimously put fifty millions into 
his hands, to be expended absolutely at his will for 
any purposes of national defence. 

But it is not to times of war or of rumors of war 
that one should look for authoritative definitions of 
political powers. Those of every department of gov- 
ernment are then commonly strained to the utmost, 
and all tend to support the military arm. 

When Lincoln assumed to suspend the privilege 
of habeas corpus, Congress came to his aid by an 
Act^ formally investing him with such a power, to be 
exercised anywhere and at any time at his discre- 
tion, and granting immunity for any acts in restraint 
of liberty done at his command. Similar action was 
taken in the Confederate Congress to strengthen the 
hands of President Davis, and his influence in shap- 
ing legislation was even more evident and effective, 
throughout the war, than that of President Lincoln 
at Washington. 

Let us go back to times of peace and ask which 
President was the first to startle the country by the 

lOf March 3, 1863. 



96 ABSOLUTE POWER, 

exercise of powers not before generally thought to 
appertain to the Executive Department. 

It was Jefferson, when in 1803 he bought the 
Louisiana territory from Napoleon, and by a stroke 
of his pen doubled the area of the United States. 
It inevitably moved the centre of political rule to the 
valley of the Mississippi. It destroyed the existing 
balance of power between the States. But it was for- 
tunate that under our political system there was one 
man able thus to commit the country, without con- 
sulting it, to so great a departure from its earlier 
traditions. 

A generation later, another executive act proved 
that the President was stronger than any combination 
capital could form, though supported by far-reaching 
political influences. The United States Bank was 
the greatest financial institution which the United 
States have ever seen. It had paid a million and a 
half to the government for its charter. It was made 
by Act of Congress the standing depository of the 
cash funds of the United States, unless at any time 
the Secretary of the Treasury should order their with- 
drawal. President Jackson believed that the affairs 
of the bank were being improperly conducted, and 
requested the Secretary of the Treasury to remove 
the deposits. The Secretary declined, stating that 
he saw no reason for it, and that the authority to 
decide had been lodged with him. His removal fol- 
lowed, and a successor was appointed who promptly 
complied with the President's wishes. The Senate 
denounced Jackson's action as unwarranted by the 
Constitution. He sent in a protest against this res- 



AN AMERICAN INSTITUTION 97 

olution, which they voted to be a breach of privi- 
lege. A commercial crisis followed, which shook 
the country to its foundation, and by one of the great 
parties of the day was attributed to Jackson's act. 
Whether the cause of it or not, the removal of the 
deposits was certainly the occasion, and it came by 
the absolute will of the President alone. 

It was Jackson, also, who first showed the people 
how almost irresistible, in strong hands, and on great 
occasions, is the force of the executive veto. It is the 
common prerogative of royalty, but one to which 
modern royalty seldom dares to resort. Queen Vic- 
toria has, in law, the same absolute veto power as to 
every bill which Parliament presents to her for the 
royal assent which Queen Elizabeth or William the 
Conqueror had. But does she use it? No English 
sovereign since the Hanoverian dynasty came in has 
ever used it, and none ever will. It has fallen into 
desuetude because it is an absolute power, and be- 
cause no men of Anglo-Saxon stock will ever again 
stoop to absolute power, exercised by hereditary 
right. 

The disuse of the royal veto has brought on a silent 
but fundamental change in the whole system of Brit- 
ish government. The ministry, unwilling to ask the 
sovereign to approve a bill that they do not, if such a 
measure is forced upon them, resign their offices or 
dissolve the Parliament. As the Crown cannot be 
held responsible to the people, the ministry must be, 
— a vicarious sacrifice at the altar of liberty. 

In every form of government that stops short of 
despotism, the people must have some share or some 

7 



98 ABSOLUTE POWER, 

semblance of a share in legislation, either by way of 
origination or approval. 

In the palmiest days of monarchy in France the 
edicts of the King were submitted for registration to 
the parliaments of justice; and the convocation of the 
States General was always in reserve. Under the 
reign of the Caesars the absolutism of the Emperor 
was rested on the assumption that the people had 
delegated to him their powers and the functions of 
their tribunes to intervene for them to defeat an 
unjust law. 

But the American veto is supported by no legal 
fiction, and impeded by no fear of popular discontent. 
During his short term of office, and because of his 
short term of office, the President of the United States 
may set down his foot at any point and oppose his 
individual will to the judgment of the whole people, 
speaking by their representatives, and of all the 
States, speaking by their ambassadors in the Senate. 
If such a veto is sent in during the closing days of the 
session, as Congress is now constituted, with so great 
a number of members in each of the houses, and the 
opportunity for unlimited discussion in one, it is 
almost certain to be fatal to the bill ; and under any 
circumstances it is fatal, if the President and Congress 
are in general political accord. 

But if they are not, what then? He has a greater 
prerogative in reserve. 

The executive power of the United States, and the 
whole of it, is vested in this one man. What are laws, 
if they are not executed? And who is to judge, ex- 
cept the President, or above the President, whether 



AN AMERICAN INSTITUTION 99 

an Act of Congress which he is called upon to ex- 
ecute is or is not such an Act as Congress had power 
to pass? 

We have, indeed, now passed from questions of 
expediency to questions of jurisdiction. 

The President can veto a bill because he deems it 
inexpedient, or because he deems it unconstitutional. 
He can only decline to execute a statute which has 
become such without his approval, because he be- 
lieves it to be no law at all. But the absolute power 
of decision, and of action or inaction, in either case 
is equally in him. 

This was the position of Jefferson and of Jackson, 
but it required the Civil War to make it an unques- 
tioned principle. 

At its close society was confused and disorganized 
in every one of the States south of Kentucky. The 
status of almost half the population had been revolu- 
tionized. The natural political leaders had been set 
aside. A general readjustment of civil government 
to meet all these new social conditions was necessary. 
President Lincoln and after him President Johnson 
proposed to accomplish it by the exercise of the ex- 
ecutive power. Temporary governments were set up 
under military authority. Executive orders were 
issued, authorizing popular elections, under certain 
conditions, to replace military by civil rule and home 
rule. Congress interposed to prevent it. The " Re- 
construction laws " were enacted, and others, such as 
the Tenure of Office Act, intended to subordinate the 
President of the United States, as to military affairs, 
to the General then in command, and, as to civil ad- 



lOo ABSOLUTE POWER, 

ministration, to the will of Congress. Of these Acts 
some were so incorporated into other legislation that 
they secured an approval under protest. Others were 
returned with the President's disapproval, strongly- 
expressed. They were passed over the veto. They 
were treated with contempt. The Secretary of War 
was removed without the consent of the Senate and 
against its will. A great party, in full control of Con- 
gress, found itself hampered and thwarted at every 
step by one man, whom they had selected for a posi- 
tion of little authority, and the accident of death had 
elevated to the highest. 

The President was impeached. His answer was, in 
substance, a justification of the acts complained of. 
He was accused, not only of disregarding the Tenure 
of Office Act, but of having stated in public ad- 
dresses that the policy manifested in the Reconstruc- 
tion laws led in the direction of disunion and the 
permanent disruption of the States; that they vio- 
lated the fundamental principles of the government ; 
and that they tended to consolidation and despotism. 
He avowed these opinions, and declared that they 
had been deliberately formed, and rightfully ex- 
pressed. He was prosecuted and defended with the 
greatest ability. The trial was long. It was followed 
in every part of the country and of the civilized 
world with the closest attention. A judgment of 
acquittal came, and the one vote that saved him from 
conviction, I might almost say, re-made the Constitu- 
tion of the United States, If such a President as 
Andrew Johnson, so defiant of opposition, so abusive 
to his opponents, so distrusted by the party that had 



AN AMERICAN INSTITUTION loi 

elected him, on the one side, and by the party which 
had rejected him, on the other, could not be success- 
fully impeached for following out, and to the end, in 
matters so all-important to the people and the States, 
his view of the Constitution against that of Congress, 
no President ever could be. 

Up to that hour the great engine of impeachment 
and removal from office, left in the hands of the Con- 
gress and the Chief-Justice of the United States, had 
been looked to as a perpetual guaranty against the 
undue exercise of executive power. It had been 
thought by Madison and Pinckney to make the 
President too dependent on the favor of the legisla- 
ture.^ The test of use was applied, and it had fallen 
to pieces by its own weight. It had done no more 
than give the President a new forum and a wider 
audience for the proclamation of his right to ad- 
minister and defend the Constitution as he might 
construe it, and to denounce before the people any 
legislation that he might deem to violate its principles. 

There had been before, on one great occasion, a 
difference of opinion, strongly pronounced, as to his 
constitutional duty, between the President and the 
courts. Jackson declared, when he vetoed the re- 
charter of the United States Bank, that he had sworn 
to support the Constitution as he, not others, under- 
stood it, and that the authority of the Supreme Court 
must not be permitted to control either Congress or 
the Executive when acting in their legislative capaci- 
ties. It was left for another Tennessean, in another 

1 Elliott's Debates, v. 528. 



102 ABSOLUTE POWER, 

generation, to vindicate the doctrine that the Presi- 
dent was equally independent of the courts when 
acting in his executive capacity. 

Can the President be prevented from executing an 
Act of Congress which the Supreme Court considers 
to be unconstitutional and void? 

This was the great question which Mississippi 
brought to the bar of the Supreme Court of the 
United States in 1866. 

The Reconstruction Acts purported to set aside the 
existing governments of certain States, — govern- 
ments existing by the authority or sanction of the 
President as commander-in-chief of the military 
power of the United States. Mississippi was one of 
these. She asserted that these statutes were uncon- 
stitutional and void, and sought leave to file a bill for 
an injunction to prevent President Johnson from un- 
dertaking to enforce them. 

No one would have been better pleased than he 
to see them fail. But he knew that it was his duty to 
defend the dignity of his great office. By his direc- 
tion the Attorney-General opposed the motion of the 
State of Mississippi. It was denied, and the cause of 
Mississippi v. Johnson ^ established by judicial deci- 
sion what had been only feebly and sporadically 
claimed by Johnson's predecessors, that the President 
was the absolute judge of his duty as to proceedings 
in the execution of a statute, subject only to the 
power of the courts to pass upon the legal effects of 
his action, should they afterwards become proper 
matters of judicial controversy. 

1 4 Wallace's Reports, 475. 



AN AMERICAN INSTITUTION 103 

We have seen how far the military powers of the 
Executive may serve as a warrant to interfere with 
the administration of justice in State courts. In time 
of war and in the presence of war, it extends to their 
temporary abolition. When enemies' territory is 
occupied, or territory to which the rules of public 
law assign that name, though it be that of a State of 
the Union, the President can replace its courts by 
courts of his own, exercising both civil and criminal 
jurisdiction, and disposing of life, liberty, and property, 
not as instruments of the judicial authority of the 
United States, but as instruments of the executive 
authority. 

Such was President Lincoln's Provisional Court, 
established by a mere military order in Louisiana in 
1862. Four years later Congress ordered its records 
transferred to the Circuit Court for the Eastern Dis- 
trict of the State, and made its judgments, in legal 
effect, the judgments of that court. The validity of 
this legislation was attacked, but it was finally sup- 
ported by the Supreme Court of the United States,^ 
and under this decision in the case of The Grapeshot, 
what were really decrees of the President, speaking 
by his military deputy, the judge of the Provisional 
Court, were made to stand for and virtually become, 
by legislative action, the judgments of a regularly 
constituted judicial tribunal, which could only have 
pronounced them by virtue of its judicial powers. 

But how far, in time of absolute peace, can the 
President of the United States, in the exercise of his 
1 The Grapeshot, 9 Wallace's Reports, 129. 



I04 ABSOLUTE POWER, 

civil authority, interfere with the police of a State, 
and set aside its ordinary course of justice? Let 
Neagle's Case, which arose from threats of violence 
against Mr. Justice Field of the Supreme Court, give 
the answer. The President can surround civil officers 
of the United States, within a State, with armed 
guards, who can defend them, even to the death, i 
without responsibility to the State whose peace may 
be disturbed. He may send such guards in the train 
of every judge upon the circuit, and however they 
m.ay overstep the line of duty, the State cannot call 
them to account. There is, says the Supreme Court, 
a peace of the United States as well as of the State, 
which is broken by an attack upon such an officer, 
and although the peace of the State be also broken 
by the defence, this can be determined only by the 
courts of the United States.^ 

I have spoken of the President as the sole repre- 
sentative of the United States in our dealings with 
foreign nations, except, indeed, that the ordinary ex- 
ecutive prerogative of declaring war has not been 
confided to him. If he cannot declare war, however, 
he can create one. 

Take, for instance, his power to which I have 
already alluded, of receiving foreign ministers. To 
receive them as coming from what foreign sovereigns? 
From such, and such only, as he may choose to re- 
cognize as sovereign. From Hawaii, if he chooses to 
recognize the Hawaiian Republic, From Cuba, if he 
chooses to recognize the Cuban Republic. Such an 

1 Neagle's Case, 135 United States Reports, i. 



AN AMERICAN INSTITUTION 105 

act of recognition in case of a political revolution 
that has obtained temporary success, may obviously 
constitute a casus belli in favor of the former govern- 
ment. 

In all America that lies south of us we have long 
taken an especial interest. As to the foreign rela- 
tions of our sister republics there, we may almost say 
that our will is law ; and our will is uttered by our 
President. 

Let one of these republics complain to him of en- 
croachments threatened by a European power. It 
is Mexico struggling to free herself from an Austrian 
emperor sent and supported by Louis Napoleon. At 
a few words from our Department of State, in the 
name of President Johnson, the French troops are re- 
called, and Maximilian is led to execution. It is 
Venezuela, charging England with pushing too far 
the boundaries of British Guiana. A sudden mes- 
sage to Congress from President Cleveland asks for 
the appointment of a commission to aid him in de- 
termining which nation is in the right, and intimates 
that if Venezuela proves in the right she shall have 
right done. In an hour, by this executive act, we are 
brought face to face with a question of war with the 
leading power in Europe, and the danger of it passes 
awaythrough a diplomatic correspondence, for the issue 
of which the President was again alone responsible. 

The very ground of our interference in this quarrel 
of Venezuela — what was it but a doctrine proclaimed, 
and indeed invented, by a President of the United 
States? The Monroe Doctrine has laid down the law 



io6 ABSOLUTE POWER, 

for our hemisphere, and it was the single act of the 
executive department. 

Has any sovereign in Europe, of his own motion, 
ever done as much? There was some reason for the 
remark made at the time by the organ of the French 
ministry, that it had been " reserved for Mr. Monroe 
to show us a dictator armed with a right of superi- 
ority over the whole of the New World." ^ 

The place of the President in our government was 
prepared for those who could be safely trusted with 
imperial power — for ideal heroes of the nation whom 
the leaders in each State, chosen by the people for 
that sole purpose, in the secret conclave of the elec- 
toral college, might agree on, — must agree on, — for 
in no nation at any time can there be more than one 
to whom all true men look as the foremost citizen. 

The framers of the Constitution sat in convention 
under the Presidency of such a hero. It was for 
Washington that they prepared the place of President 
of the new republic. It was by such as Washington 
that they hoped the powers of this great office would 
be administered when he should fill it no longer. 

Their forecast has been but half fulfilled. The 
electoral colleges have sunk to the condition of so 
many patent voting-machines. They are a survival 
of the unfittest. Human government, like natural 
government, is administered, in the long run, on the 
principle of natural selection ; but we are more apt to 

1 This appeared in UEtoile, the journal of the administration, as 
soon as news of the President's message reached Paris. See McMas- 
ter's " Origin, Meaning, and Application of the Monroe Doctrine " ; 
Notes, p. 49. 



AN AMERICAN INSTITUTION 107 

change the substance than the form of pohtical insti- 
tutions. England has slipped into a republic without 
knowing it. They keep their Queen, indeed, and are 
proud of her reign of sixty years, but she is little 
more than a historical curiosity. Our Presidential 
electors were brought into being as the safest and 
surest way of declaring the will of the people. We 
have found a better way, in national conventions of 
great parties and the popular verdict upon their 
work, at the polls ; but, by the force of the vis inerticB, 
we still cling to the out-worn form of the electoral 
college. The tailors persist in sewing two buttons on 
the backs of our coats, because in the England of the 
Tudors, when all travelling was done on horseback, 
one had to button back the skirts of his riding coat, 
to keep them from flapping and fraying against the 
saddle-bags. The tailor is the despot of modern 
society, — he still insists on his two buttons, though we 
have forgotten their use ; and so the electoral colleges 
seem destined to cling to the skirts of the Constitu- 
tion, simply because nobody cares to take the trouble 
to have them cut off. 

Their purpose was good, but it has become an im- 
possible one. Only a great war can give us again a 
national hero, and even then the successful General 
can never be President unless he be formally adopted 
as the candidate of a great party. 

The successors of Washington have been often 
weak men, — never, as yet, bad men ; but it is hard to 
name more than three of them who can in any sense 
be termed the heroes of the nation. The great 
powers, however, are always there, if the great man is 



io8 ABSOLUTE POWER, 

not; and every generation has made them powers 
greater still. 

Time has also brought a greater permanence to 
them. 

Thrones are allowed to descend by hereditary suc- 
cession because it is believed that the son is most 
likely to follow the policy of the father, and to resem- 
ble him in character. 

The election of our Vice-President is arranged with 
a similar view; but for a hundred years the vacancy 
that might occur by the event of his death was left by 
our laws to be filled by officers chosen by one or the 
other house of Congress. What might have been 
expected finally happened. A Vice-President be- 
came President, and the legislative officer next in suc- 
cession was of a different political party. It was a 
time of deep party feeling, and there was serious 
danger that the President might be pushed from his 
place to make room for a representative of widely 
different views ; coming into power, perhaps, by his 
own vote as a member of a Court of Impeachment. 
Twenty years later, when passion had had time to 
cool, a wiser law was enacted, under which the Presi- 
dent, in such a case, names, in effect, his own suc- 
cessor, and so secures the continuance of the same 
policy until the people have had another opportunity 
to declare their will. 

Aristotle said that the principle or spirit of two 
governments widely different in political form might 
be the same. 



AN AMERICAN INSTITUTION 109 

The principle of despotism may exist in any gov- 
ernment. It may dominate in a democracy. It does 
when the popular majority legislates at will on 
matters of individual liberty or property. Despotism 
was never more terrible than in the hands of the 
people in the French Revolution. 

We need not be surprised, therefore, that, beginning 
in 1787 by granting our President more extensive 
powers than the chief magistrate in any democratic 
confederation had ever received before in times of 
peace, ^ we have finally drifted into a kind of modified 
constitutional despotism. It was the logical outcome 
of our attempt to unite in one government the form 
of a confederation and the principle of a nation. If 
sovereign States were to be kept within the limits 
which the Constitution set, it must be by something 
in the nature of a sovereign power that was even 
greater than they. The people of the United States 
are greater than any or all of the United States, but 
they cannot meet together, and none to represent 
them can meet together, save in the extraordinary 
and yet unknown event of a second national constitu- 
tional convention. They must therefore speak by 
the chief magistrate of the republic ; and so has come 
his transcendent power. 

I have compared that power with the authority 
exercised in his dominions by the Czar of Russia. 
It has become a political aphorism that Russia is 
governed by despotism tempered by assassination. 
Enhance human power to a certain point, and it be- 
comes to some men intolerable. As we look back 
1 2 Woolsey's " Political Science," 25S. 



no ABSOLUTE POWER, 

on the dagger of Booth, and the sic semper tyrannis 
with which he struck home his blow; at the shot of 
a disappointed office-seeker that cost the life of 
President Garfield, — we cannot but feel that there 
are fanatics in America also, who proceed by the 
methods of fanatics, and are actuated by the blind 
impulse of destruction in the presence of political 
absolutism. 

But such men are few. There is despotism in 
American government; but all who look at it with 
open eyes and honest hearts know that it is despotism 
in reserve and despotism in division. Russia would 
centre absolute power once and forever in a single 
man. We part it for administrative purposes between 
three departments of government, and however great 
the share of the executive may be, it is still kept 
within limits, and held, at most, only for eight years. 
I say for eight, because American tradition has made 
a third term impossible. 

Our ultimate despot is the people of the United 
States ; but they are the knights in armor that from 
generation to generation may slumber in the en- 
chanted chambers of the eternal hills. They lay 
down to rest when a declaration of their rights had 
been added to the Constitution of the United States 
by its first ten amendments in the third year of 
Washington's administration. They rose to action 
for a moment when, three years later, they found 
that their ministers of justice had so far misunder- 
stood their meaning as to hold a sovereign State sub- 
ject to the federal jurisdiction, at the suit of a private 
individual. Again, at the beginning of this century, 



AN AMERICAN INSTITUTION iii 

they awoke, when party machinery had so far con- 
trolled personal patriotism that Aaron Burr had 
almost been seated in the place which they designed 
for Thomas Jefferson. 

A longer period of inaction followed, till the time 
came to proclaim by law, what had been before only 
asserted by the sword, that slavery had become in- 
compatible with free institutions. But the long war 
that made freedom national, had done much more. 
It had struck at States. It had conquered States. It 
had borne down with its strong hand barrier after 
barrier set by former generations to guard that vast 
and indefinable domain of rights " reserved to the 
States respectively, or to the people." It had brought 
into existence a new class of persons, a great class ; 
utterly unfitted to their new position ; surrounded by 
those who had been their masters, distant from those 
who had been their liberators. 

Two great things remained to be accomplished. 
These millions of slaves, new-born into freedom, must 
be protected in it, or given some means of self- 
protection ; and these new relations of the States to 
the United States, of the old States to the new nation, 
must be more definitely marked and secured. 

Again the knights in armor stirred in the enchanted 
chamber. The Fourteenth Amendment succeeded 
the Thirteenth ; the Fifteenth soon followed, and the 
chapter of the Civil War was closed. 

But the freedom of the slave was the least of its 
political consequences. These three amendments of 
the Constitution readjusted and reset our whole 
system of fundamental law. 



112 ABSOLUTE POWER, 

Down to 1868 each State had said for herself, My 
people shall be free from arbitrary arrests ; their 
liberty and property shall be secure; their rights 
equal ; the law impartially administered ; the stranger 
within my gates protected from wrong as fully as 
my own sons. Now came back for a brief moment 
to the scene of action the people of the United 
States, to say, by the Fourteenth Amendment, that 
thenceforth every man should have their guaranty 
that the State would not recede from these obliga- 
tions, but they should forever be the foundation- 
stones of American institutions. 

We well know that this great change was not a 
welcome one to the whole people. Only absolute 
power, the absolute power of a three-fourths vote of 
the States under a written Constitution — the absolute 
power of a two-thirds vote of Congress, with the ab- 
solute right in each of its houses to determine as to 
the qualifications of its own members and the admis- 
sion of members from any recalcitrant State, — with 
the right to pack the jury even, by admitting to 
statehood a row of mining camps on barren moun- 
tains, and giving to Nevada an equal vote with Vir- 
ginia or Massachusetts, — this is what forced the 
Fourteenth, if not the Thirteenth, Amendment into 
our organic law. 

But there it is. It was a slight matter that it 
hastened the day of negro suffrage, and paved the 
way for the Fifteenth Amendment, passed two years 
later. Whenever and wherever the American negro 
has education enough to enable him to cast an intel- 
ligent vote, he will cast that vote, and he ought to 



AN AMERICAN INSTITUTION 113 

cast it. And whenever and wherever he has not 
such education, he ought not to vote, and, in the 
long run, he will not vote. Mississippi and South 
Carohna have put themselves upon solid ground in 
saying that education must be a condition of suffrage. 
It is no new doctrine. In the North there is more 
than one State in which such has been the law for 
nearly half a century. 

The great change wrought by the Fourteenth 
Amendment has been to concede and perpetuate to 
the United States vast and far-reaching national 
powers ; to unify and centralize their government, for 
good or ill. 

It has been said that the ideals of the Teutonic 
race have been in perpetual vibration from one pe- 
riod to another, as the pendulum of time swung to 
and fro across the ages, between two social forces — 
Individualism and Collectivism ; between the cry of 
each man for himself, sauve qui peut, and the broader 
note of each for all. 

If absolute power has risen up in the United States, 
and for the United States, during this century, to a 
height our fathers never contemplated, it is because 
we have departed from our Anglo-Saxon inheritance 
of Individualism; because the people demand more 
of their government, and have given it more. When 
Coleridge declared that — 

" We receive but what we give, 
And in our life alone does nature live," 

he spoke what is, above all things, true of free institu- 
tions. For each of them, the individual citizen has 



114 ABSOLUTE POWER, 

parted with something. They are the great result of 
a common contribution ; and whatever they give back 
we who receive have paid for, are paying for, whether 
we recognize it or not. 

It was Collectivism that wrote the Fourteenth 
Amendment; Collectivism that ratified it ; Collectiv- 
ism that enforces it. It protects individual rights, as 
in no land were they ever, in any age, protected be- 
fore. But this is only by the sacrifice of other rights 
of Individualism; only by extension of the sov- 
ereignty of the Union at the cost of the sovereignty 
of the State ; only by giving to the courts new 
authority to control legislatures, and Congress new 
power to control the citizen; only by giving to the 
President new laws to execute, of such a kind as put 
him forward into fields before unoccupied. 

Nor is it to be forgotten that when, by some such 
great act as this, the people have changed their gov- 
ernment, it is for the executive power to proclaim the 
change, and so to give it its necessary consummation. 
It is for the Secretary of State, as the representative 
of the President, to notify the country of the adop- 
tion of every constitutional amendment.^ Then, and 
not until then, does it become the supreme law of the 
land. His signature is wanting to make it such, and 
is sufficient to make it such.^ Who but he is to 
decide whether the requisite number of States have 
given it their votes? Who but he is to say what are 
the States having the right to vote? W^ho but he is 

1 Act of 1818 : Revised Statutes of the United States, § 205. 

2 See the remarks of the Supreme Court of the United States in 
Virginia z/. West Virginia, 11 Wallace's Reports, 62. 



AN AMERICAN INSTITUTION 115 

to say whether a State which has once voted to ratify 
an amendment can reconsider its action? 

All these questions were presented by the pro- 
ceedings upon the Fourteenth and Fifteenth Amend- 
ments ; and some of them were necessarily involved 
in determining as to the adoption of every preceding 
one. 

The common practice has been for the Secretary 
of State to issue in each case a certificate stating that 
he has received due proof of ratification by a certain 
number of States, that these constituted three-fourths 
of the whole number, and that the amendment " has 
become valid to all intents and purposes, as part of 
the Constitution of the United States." He acts in 
this, of course, as an executive officer, responsible to 
the President for what he does and what he does not 
do. Until this certificate is issued (unless Congress 
is in session and intervenes), the Constitution re- 
mains as it was. The President may direct the Sec- 
retary to delay its issue. He may differ with him as 
to whether the necessary conditions of ratification 
have been fulfilled, and if so, he might remove him 
from office, and, as Jackson did in his contest with 
the Bank of the United States, when Duane was 
succeeded by Taney as Secretary of the Treasury, 
replace a refractory by a submissive agent. 

Such is the great office around which modern re- 
publicanism has built up its government on American 
soil. 

In the impeachment trial of Andrew Johnson, one 
of the managers of the prosecution described the 



ii6 ABSOLUTE POWER 

President as nothing but " the constable of Congress." 
Had that impeachment been successful, the contemp- 
tuous taunt might have seemed simple truth. It was 
not successful, because all honest men, not blinded 
by party passion, felt that the President held great 
constitutional functions, which made him, in his 
sphere, the spokesman of the republic. 

The foe that threatens American institutions to-day 
is not absolutism, but anarchy ; not the tyranny of a 
man, but a tyranny of the mob. To meet it we need 
the strong hand of power. If we were not a nation 
before the Civil War, we have been since. A nation 
must have a head. There is no ground to fear that 
the President of the United States, absolute as he is 
within his bounds of office, will ever act the part of 
Caesar. The foundations of American liberty are laid 
too deep. The checks of the Constitution are ample 
for any strain, because they are backed by the senti- 
ment of a free and intelligent people. 

It might seem that there was grave danger of his 
acting rashly in great emergencies. Had he less 
power, there would be. But concentration of power 
brings concentration of responsibility. The most im- 
petuous man is held back if a hasty word or act of 
his might put the peace or welfare of a nation in 
peril. It is his very absolutism that has made the 
President, in respect to all matters of foreign policy, 
— and there he is most powerful, — the great con- 
servative force in our constitutional system. 



CHAPTER V 

THE EXEMPTION OF THE ACCUSED FROM EXAMI- 
NATION IN CRIMINAL PROCEEDINGS 1 

THE exemption of persons accused of crime from 
being compelled to testify against themselves 
is one of the institutions of English jurisprudence 
which we have fully adopted. It has been incorpor- 
ated into the Constitutions of all but three ^ of our 
States, and was grafted into that of the United States 
at the instance of the first Congress, by the Fifth 
Amendment. This declares that no person shall be 
compelled in any criminal case to be a witness against 
himself, and the State Constitutions use language 
substantially similar. 

The practical construction which these provisions 
have received from courts and legislatures has been 
such as generally to exclude any preliminary exam- 
ination of a person charged with crime, by a magis- 
trate acting for that purpose on behalf of the State. 
It is the purpose of this chapter to inquire whether 
that construction is the proper one. 

And what, in the first place, was the reason for the 
original establishment of this rule of immunity? The 

1 In preparing this chapter free use has been made of a paper read 
by the author before the American Bar Association, in 1883. 

2 Georgia, Iowa, and New Jersey. Michigan did not introduce the 
provision until 1850, nor South Carolina until 1868. 



n8 EXEMPTION OF THE ACCUSED FROM 

slightest glance at English history leaves us in no 
doubt as to that. 

Our fathers, in the era of our early constitution- 
making, were not acting the part of political theorists. 
They undertook to deal with practical questions in a 
practical way. It was their business to gather in the 
hard-v/on fruits of the Revolution. They had just 
struck off the hold of a government which had been 
always hard, and often hostile, — a government ad- 
ministered in the interest of the great and the rich ; 
a government which was suspicious, jealous, over- 
powering, when it wished to overpower. Men were 
still living in whose boyhood torture, even, had been 
applied on British soil, to wring confessions from un- 
willing lips ; and the common law gave no sufficient 
warrant against its future use, should public safety 
ever be deemed to demand it, by those in power. 

If we turn to the leading writers on the English 
jurisprudence of their day, we find that Britton, in- 
deed, had said^ that felons must be brought into 
court without irons, " so that they may not be de- 
prived of reason by pain, nor be constrained to an- 
swer by force, but of their own free will ; " but Bracton 
puts this privilege as granted so that they might not 
appear compelled to offer to undergo the trial by 
ordeal.2 Coke gravely tells us in his " Institutes " ^ 
that " there is no one opinion in our books or judiciall 
records (that we have seen and remember) for the 
maintenance of torture or torments," and that Magna 

1 Cap. V. 36. 

2 Bracton, lib. iii. 137, "Ne videat coact' ad aliquam purgationem 
suscipiendam." 3 Vol. iii. p. 35. 



EXAMINATION IN CRIMINAL PROCEEDINGS 119 

Charta forbids it; yet a few years before (1619) he 
had signed, as privy councillor, a warrant to put one 
charged with treason to the rack ; ^ and in his speech 
as Attorney-General, in 1600, in the prosecution of 
the earls of Essex and Southampton, he attributes to 
the queen " overmuch clemency to some " in the in- 
quiry into the matter in hand, since, " out of her 
princely mercy, no man was racked, tortured, or 
pressed to speak anything farther than of their own 
accord and willing minds, for discharge of their con- 
sciences they uttered."^ So in 1613, in the Countess 
of Shrewsbury's Case, Coke,^ as chief-justice, men- 
tioned it as a special privilege of the peerage in legal 
proceedings that, " for the honor and reverence which 
the law gives to nobility, their bodies are not subject 
to torture in causa criminis 1(es(e majestatis." 

It took, in truth, Cromwell and the Civil War to 
root out torture from the English courts ; nor was it 
given up in Scotland until the succeeding century. 

The whole criminal code of England was a bloody 
and heartless one when the Pilgrims sailed away for 
freer shores. Its severity, it is true, often prevented 
its execution. Juries stood ready to violate their 
oaths rather than send a man to the gallows for some 
trivial offence ; and judges construed the strength out 
of many a Draconian statute. But there had been 
also a Chief-Justice Jeffreys, and indeed, wherever the 
interests of the party in power were involved in a 
criminal proceeding, the bench had proved but a 
feeble barrier against political passions and prejudices. 

1 Samuel Peacock : Ann. Reg. for 1790 ; Antiq. 96. 

2 I State Trials, 1336. ^ 12 Rep. 96. 



I20 EXEMPTION OF THE ACCUSED FROM 

Under the guise of prosecuting crime, the ministers 
of justice had too often been seen to strike down the 
innocent and spare the guilty. 

What might be the future of the new governments 
which a hundred years ago were being here called 
into life, to succeed to the rights forfeited by the 
British Crown, who could tell? They were to be clad 
with the same sovereign power. They might abuse it 
in the same way. 

For this cause we find these solemn guaranties in 
our American Constitutions of the right of all accused 
of crime to have fair notice of the charge, defence 
by counsel, trial by jury, and exemption from being 
forced to testify against themselves. 

That of defence by counsel is more nearly con- 
nected than one might think with that of immunity 
from enforced confession. 

In Finch's " Discourse on Law," he speaks approv- 
ingly of the then English rule of refusing counsel 
when the prisoner denied the fact, and gives this as 
his reason : — 

"For either his conscience, perhaps, will sting him 
to utter the truth, or otherwise, by his gesture, coun- 
tenance, or simplicity of speech, it may bee discovered ; 
which the artificial speech of his counsel learned, 
would hide and colour. Also himself can best an- 
swer to the fact." ^ 

The power of a law can seldom be known or fore- 
told when it is enacted. It will lie in the construction 
and operation to be given it by the courts and people. 

1 Edition of 1661, p. 386. 



EXAMINATION IN CRIMINAL PROCEEDINGS 121 

If it appeals to some popular prejudice; if it is 
rooted in some traditional principle of freedom, for 
which a former generation may have fought with their 
kings, and fought successfully; if it attracts human 
sympathy, or reassures human fears, it may rear up 
around itself a wall of protection and public rever- 
ence which will endure long after the reason of the 
enactment has ceased to exist. 

A law may grow into an institution. It may be 
extended by analogy. It may be expounded and 
expanded by some course of judicial decision, far 
beyond the anticipations of its framers. 

So did the httle phrase, " impair the obligation of 
contracts " — like the genius of some Arabian tale — 
at the touch of the magic wand of Chief-Justice Mar- 
shall, rise and spread into the form of that invincible 
champion of chartered franchises, by which the whole 
theory of American corporations was to be revolution- 
ized once and again. And so, by means perhaps less 
direct, but no less controlling, has a new meaning 
been read into many a provision of statute or consti- 
tution, by public opinion and the lapse of time, — a 
meaning by which the law, it may be, at last ceases 
to protect, and begins to oppress society. 

Has not this been the history of the constitutional 
guaranty now under consideration? 

The judges of England had given it as their opin- 
ion, in 1628, under the spur of the public sentiment 
that was then dictating the Petition of Right, that to 
compel a discovery by torture, from one accused of 
crime, was not allowable by the laws of the realm. 



122 EXEMPTION OF THE ACCUSED FROM 

All precedent, however, was against them. The 
practice of the reigning sovereign continued to be 
against them as long as he had courts to control. 
The authorities which they could cite to sustain their 
opinion were uncertain. Britton, in the passage al- 
ready quoted, was the strongest of all. Fortescue^ 
had inveighed, with a manly outburst of feeling, 
against the barbarity and folly of the practice, but 
had not ventured to deny its legality. Jardine, in 
our own day, has not hesitated to defend it as an 
ancient flower of the prerogative. The maxim Nemo 
tenetitr accusare seipsiim first appears in English law 
books ^ at the era of the civil war, and certainly 
derives no authority from the language in which it is 
expressed. As Ortolan said of the theories of Roman 
law and legend evolved by the German historical 
school, it has the singular merit of having been wholly 
unknown to the Romans themselves. Hardly two 
authors quote it in the same words, and in one leading 
case,^ it is cited twice in the same opinion, — once as 
Nemo te7ietiLr accusare seipsutn, and once as Nemo 
tenetur prodere seipsimt. 

Here, then, was a disputable doctrine of uncer- 
tain origin, — a doctrine that great men could assert 
in books, and deny in practice. It was a doctrine 
in advance of the utterance of the judges in Felton's 
Case. They only forbade torture. This went fur- 
ther, and forbade any form of compulsion. In the 

1 Cap. xxii., folio 24. 

2 Wingate's " Maxims," 1648. 

^ People V. McMahon, 15 New York Reports, 387, 390. 



EXAMINATION IN CRIMINAL PROCEEDINGS 123 

Countess of Shrewsbury's Case, already cited, while 
her rank and sex might save her from the rack, 
Coke and Bacon concurred in holding that a fine of 
^20,000 and imprisonment during the king's pleasure 
were but a just punishment for her refusal to crim- 
inate herself; and the poor lady, in fact, died in the 
Tower. 

Our forefathers, then, approving to its full extent 
the principle formulated in Wingate's maxim, deter- 
mined to give it a place in their Constitutions. They 
did so. But did they mean to do more, and in effect 
impede, if not prevent, disclosures of crime, not pro- 
cured by force or threatened fine or imprisonment? 
Did they intend to forbid any preliminary examina- 
tion of an accused person designed only to assist the 
proper authority in determining whether he should 
be prosecuted or discharged? For this is the result 
to which a hundred years of use has really brought 
us. 

In few of our States ^ is the prisoner, on his arrest, 
even asked by the examining or committing magis- 
trate if he desires to make a statement ; and in almost 
every one of these the magistrate is enjoined to cau- 
tion him that he need say nothing, and that whatever 
he does say may be used against him. Similar 
provisions were introduced into the English law by 
Sir John Jervis's Act^ in 1848. 

1 Some sort of provision to this effect is made in Delaware, Louis- 
iana, Mississippi, Missouri, New Hampshire, New Jersey, New York, 
North Carolina, Tennessee, and Texas, and in these States only. 

2 II & 12 Vict., cap. xlii. 



124 EXEMPTION OF THE ACCUSED FROM 

Is it not plain that such an invitation to speak is 
rather a counsel to keep silent? 

The object of criminal prosecutions is to detect 
the authors of crime, and to punish them. In the 
majority of cases the person arrested is the person 
guilty. In most countries the first step is to ask him 
to give an account of himself with reference to the 
crime in question ; to say where he was and what he 
was doing at the time of its commission; to explain, 
if he can, the circumstances which fasten suspicion 
upon him. In most countries this inquiry is con- 
ducted by a magistrate or prosecuting officer, and 
instituted before the prisoner has consulted counsel, 
or had time to frame theories of defence. The result 
of the examination is put in writing by the same au- 
thority, and therefore preserved in an authentic form. 
If the accused be innocent, he will often be able to clear 
himself by a frank statement ; if guilty, he will probably 
become involved in contradictions and absurdities. 

Such was the practice in England until the Act of 
1848. Her justices of the peace were originally 
more like our constables, — prosecuting, rather than 
judicial officers. From ancient times, and under the 
positive injunctions of an Act of 1554,^ they had 
made it a principal part of their duty to examine the 
prisoner, and record whatever information he gave.^ 
In the Countess of Shrewsbury's Case, we find Lord 
Bacon pressing her to a disclosure by this very con- 
sideration of ancient and reasonable practice. 

1 2 & 3 P. & M., c. X. 

2 I Stephens' "History of the Criminal Law of England," 219, 221. 



EXAMINATION IN CRIMINAL PROCEEDINGS 125 

" No subject," he says, in his stately fashion,^ " was 
ever brought in causes of estate to trial judicial, 
but first he passed examination; for examination is 
the entrance of justice in criminal causes : it is one 
of the eyes of the king's politic body: there are 
but two — information and examination : it may not 
be endured that one of the lights be put out by your 
example." 

No prisoner, indeed, can hope to be exempted 
from examination simply because the law makes no 
provision for requiring it. Some such questioning, 
under any system of jurisprudence, he is certain to 
undergo. It may come from neighbors, from busy- 
bodies, from reporters, from constables, detectives, 
jailers. It will come from them if it does not come 
from authority of law. And the answers obtained, 
lying simply in human memory, will be easily twisted 
and perverted by the narrator, anxious, perhaps, to 
magnify the importance of the revelation his sagacity 
has secured, or perhaps to screen a friend or serve a 
grudge. 

It is, in fact, the evils and inaccuracies of tes- 
timony founded on these extra-judicial confes- 
sions, which have led English and American courts 
to confine its introduction within such narrow 
bounds. 

But for the very reason that those in authority have 
no right to require a disclosure, those without author- 
ity feel justified in seeking to worm it out by threats, 
by ill treatment, by fraud, by holding out false hopes, 

1 2 State Trials, 770, 778. 



126 EXEMPTION OF THE ACCUSED FROM 

by putting forward false pretences.^ On information 
thus obtained rests a large part of the convictions for 
crime in any of our courts. The source of the in- 
formation may not appear at the trial. Unguarded 
answers may have put the inquirer on the track of 
more certain evidences of guilt; and an explicit con- 
fession, however obtained, if once made, is likely to 
result in a plea of guilty. 

In many cases, if not in most, the conviction of the 
prisoner, in this country as well as under the conti- 
nental mode of procedure, results from words spoken 
by himself. But what European courts accomplish 
by direct means, we attain by indirection. 

Unwilling to allow a magistrate to institute, as a 
matter of course, a formal examination, and place the 
result on record, we leave the same information to be 
fished for by the sheriff who makes the arrest, by the 
jailer, by a fellow-prisoner turned informer, or by the 
detective in disguise, and only require the witness 
who proves it to add, perhaps, perjury to fraud, in 
swearing that no undue means were used to elicit 
the confession. 

The tendency of modern legislation has, for fifty 
years, been strongly in favor of admitting parties in 
interest as competent witnesses. The common law 
excluded them because it believed that they were 

1 In a recent case which has attracted wide attention, the mate of 
a ship was convicted of murder, largely upon the testimony of a police 
officer as to a reply he had made to a question of his, put to him after 
he had been stripped to the skin, and while being subjected to an 
inquisitorial examination in the police station, in that humiliating 
condition. The courts reversed the judgment for this cause. Bram 
V. United States, t6S United States Reports, 532. 



EXAMINATION IN CRIMINAL PROCEEDINGS 127 

likely to lie, and certain to be tempted to lie. But, 
for a generation past, England, and for the most part 
America, have received their testimony in civil actions 
for what it is worth, and have found the cause of 
justice advanced by it. 

In criminal proceedings, the temptation to perjury, 
if the accused is allowed to testify for himself, is un- 
doubtedly greater, — rising with the degree of the 
crime charged ; and yet he is to-day a competent 
witness in most of our States, and has been since 
1878 in all courts of the United States. 

It is a general feature of these recent laws for ad- 
mitting the accused to the witness-stand, that his 
failure to testify shall not create any presumption 
against him. I cannot but think that this proviso is 
only another proof that the spirit of the constitutional 
guaranty in his favor has been misconceived in its 
administration. 

Were it not for that guaranty, who would say that 
if a man has the right to speak in his own behalf, to 
explain all the circumstances brought up against him, 
and declines to avail himself of it, it ought not to be 
deemed an indication that he cannot explain them? 
In the forum of common-sense it is such an indica- 
tion. If our boy, our servant, our clerk, is charged 
with some fault, and denies it, we expect him to 
make a frank statement of what he did or knew. If 
he does not, we consider the charge half proved. 
Should we be more tender of the prisoner in the 
dock? If we have given him the new right to testify 
for himself, it does not follow that we should dis- 
turb the balance of justice by forbidding the jury to 
suspect him if he keeps silent. 



128 EXEMPTION OF THE ACCUSED FROM 

Such has been the view of some,-' but not of most 
courts, in administering justice in such cases, under 
statutes not containing a positive prohibition against 
comment on the position of the accused if he decHnes 
to testify. The general current of decision has been 
towards making his constitutional privilege as wide as 
the words will bear. 

This course of construction has led to many rulings 
in favor of the defence which I cannot but think 
strained and unnecessary. 

Thus, in a recent case in New York, ^ it was held 
that the person of a woman charged with killing her 
infant child, could not, without her own consent, be 
examined by physicians deputed by the coroner, to 
ascertain if she had recently been a mother. The 
same principle would seem to preclude searching the 
pockets of a suspected thief, or stripping a man ar- 
rested for murder, to see if his body shows marks of 
blood or violence. 

In a later case in Georgia,^ indeed, the court re- 
jected evidence that the defendant's foot fitted exactly 
the tracks left on the ground by the perpetrator of a 
crime, because, to obtain the proof, his foot was 
placed by force in the necessary position. 

A different and, as it seems to me, sounder conclu- 
sion has been reached in some other of our States, in 
admitting testimony of a similar character.* 

1 States V. Bartlett, 55 Maine Reports, 215-221. 

2 People V. McCoy, 45 Howard's Practice Reports, 216. 

3 Day V. State, 6;^ Georgia Reports, 667. 

* State V. Graham, 74 North Carolina Reports, 646 ; State v. Ah 
Chuey, 14 Nevada Reports, 79; Walker v. State, 7 Texas Appeals 
Reports, 245. A more extended and thorough discussion of the 



EXAMINATION IN CRIMINAL PROCEEDINGS 129 

The leading authorities, however, are in accord in 
holding that the prisoner who accepts the benefits of 
a statute making him a competent witness, accepts 
them to the extent of becoming open to the same 
cross-examination to which any other witness may be 
subject, and in respect to whatever can legitimately 
throw light on the question of his guilt, whether or 
not it be connected immediately with his direct testi- 
mony.^ When he voluntarily puts himself under oath, 
the logic of the law leads inevitably to this result; 
although where the statute simply allows him to 
make a statement, there are judges of eminence who 
have reached a different conclusion. 

In fact, there are few parts of criminal jurisprudence 
in which American judges in expounding the law, and 
American legislators in framing the law, do not lean 
on the side of the defence. 

Much is said with us as to the rights of criminals ; 
so much that we almost forget that the State has 
rights against criminals and against those charged 
with crime, on the maintenance of which the public 
life depends, and that it is mainly for their mainte- 
nance that the State exists. 

" And sovereign Law — that State 's collected will — 
O'er thrones and globes elate, 
Sits empress, crowning good, repressing ill." 

A sharp lecture was read a few years ago to the 
American public by a well-known sociologist,^ on 

authorities will be found in the '' Central Law Journal," vol. xv., pp. 
2, 207. 

1 State V. Griswold, 67 Connecticut Reports, 290. 

2 Professor William Graham Sumner, LL.D., of Yale University. 

9 



I30 EXEMPTION OF THE ACCUSED FROM 

" The Forgotten Man." He was the hard-working, 
law-abiding, unobtrusive man, whom legislators for- 
got, in their zeal to help the poor, reform the vicious, 
and grant relief to every interest that clamors and 
pushes for it. 

The noblest feature of modern society is its attain- 
ments, not in science and art, but in humanity. We 
recognize the dignity and worth of man, as man, and 
recognize it even in the meanest and basest. There 
is but one temple on earth, says Novalis, and that is 
the body of man. 

But there is a point at which humanity turns into 
sentimentalism. There is a point where selfishness 
— that is, putting forward self-protection as the first 
object — is becoming to a government. 

The American system of criminal prosecutions is 
one which seldom convicts the innocent ; but it is also 
one which often acquits the guilty. The proportion 
of acquittals to jury trials is probably three times as 
great as in England, and ten times as great as in 
Scotland or on the Continent. There are few civilized 
governments in which homicide is as frequent as in 
some of our western and southwestern States and 
Territories ; there are none in which convictions for 
murder are so rare. 

The defendant has, under all systems of criminal 
justice, a great advantage in the matter of pleading. 
The prosecutor must formulate his charges with pre- 
cision and accuracy; but the plea of Not guilty leaves 
him utterly ignorant of the defence by which he is to 
be met. It may be an alibi, a justification, a claim of 



EXAMINATION IN CRIMINAL PROCEEDINGS 131 

temporary insanity. Whatever it be, he learns it for 
the first time when the trial is begun, and must be 
ready to meet and disprove it on the instant, with no 
possibility of a postponement on the ground of surprise. 

This embarrassment to the prosecution seems to be 
an inevitable one. Not so as to the embarrassments 
set up by our American administration of the rules of 
evidence ; for it is these rules which have grown into 
an artificial net-work, through whose meshes a well- 
defended criminal can so often slip. 

No fault is to be found with the fundamental prin- 
ciple that the State must satisfy the jury of the 
prisoner's guilt beyond a reasonable doubt. It 
speaks well for society when it can afford to say to a 
citizen who is pursued for a claim, however great, in- 
volving no moral wrong or civic degradation : You 
must pay it, if there is a bare preponderance of evi- 
dence against you ; and yet say to the same man, if 
charged with crime : We will declare you innocent, un- 
less we show that there is no hypothesis to be framed 
which is not inconsistent with your innocence. Only 
a free State can or will take this attitude. Perhaps no 
State which does not take it can be free. 

But here is it not time to stop? 

We have relieved the prisoner from the necessity, 
ordinarily imposed in civil cases, of pleading the 
nature of his defence. We have thrown upon the 
public a burden of proof heavier than it is thought 
just to impose on any private suitor. Why, at the 
same time, cut off the counter right which every 
private suitor has, of putting his adversary to his oath 
as to the merits of his defence? 



132 EXEMPTION OF THE ACCUSED FROM 

The historical reason we have already considered. 
If government can ask a prisoner to testify, it can 
require it of him : if it can require it, it can force a 
compliance. All such force our Constitutions forbid ; 
and far be it from any advocate of law reform to urge 
a recurrence to it ; whether it be the Bavarian plan, 
now or lately in force, of giving only bread and water 
to an accused who refuses to make a statement, or the 
more downright English methods of rack and thumb- 
screw, fine and imprisonment, discarded two centuries 
ago. But between forbidding physical or moral com- 
pulsion, and inviting, or even urging a frank dis- 
closure, the difference is wide. We have construed a 
prohibition to compel as a prohibition to request. 

We assume a burden of proof unknown except 
where the English tongue is spoken ; we demand a 
unanimity in the verdict equally unknown elsewhere; 
we often permit the jury — a thing unheard of in any 
other land — to go to their homes and mingle with 
the friends of the prisoner, while they are deliberating 
upon his guilt, — and yet we reject the aid of the 
simple expedient which would occur first of all to any 
child, of asking the accused what he has to say about 
the charge against him. 

They are still jealous of their government in Great 
Britain. It is still a royal government, supported by 
an idle aristocracy ; two of the estates of the realm 
ruling by no other right than that of birth. In 
prosecutions for political offences, the interests of 
these two estates are directly involved, and to one of 
them the bench itself, in its highest places, belongs. 



EXAMINATION IN CRIMINAL PROCEEDINGS 133 

It is not strange, therefore, that while not surrender- 
ing the procedure of preliminary examinations, close 
upon the arrest, they have been sedulous to require 
the magistrate to warn the prisoner that he need not 
answer, and that, if he does, his words may be used 
against him. 

But with us, government has no other office or end 
than to order and protect the peace of society. The 
prisoner is tried before judges, and by prosecuting 
officers, who were, directly or indirectly, of his own 
choosing. The jury is made up of his neighbors. 
The law is one, directly or indirectly, again, of his 
own making. He had been, probably, educated at 
the expense of the State, for the very purpose of 
giving him the intelligence necessary to govern his 
conduct as becomes a good citizen. No private 
prosecutor, as in most countries, is pushing the case 
against him, for revenge or restitution. He has to 
contend only with the public, and the public have no 
interest except to discover the truth, whichever way 
it lies. 

If, then, we would make the punishment of crime 
as certain here as it is in Europe — I might almost 
say, as it is in Mexico or China — is it not time to 
abandon our attempt to fight it without the use of the 
ordinary weapons that lie at hand ; without asking 
the man who, of all the world, knows best what the 
facts are, to tell us about them ; and without asking 
him in such a way as to facilitate, rather than to pre- 
vent, an honest statement? Let him be brought 
before the examining magistrate, as he is abroad, 



134 EXEMPTION OF THE ACCUSED FROM 

before he has time to fabricate an explanation ; be- 
fore he has seen counsel; when the proofs of guilt 
are fresh. Let him be asked if he desires to make 
any statement or explanation to be placed on record. 
And let all be done, not as a matter of favor from 
him, but of right to the State. 

An innocent man, under such an examination, may 
become confused. He may answer confusedly or 
incorrectly. He may admit more than he intended, 
and more than is true. But he will certainly be less 
liable to do so than if questioned unofficially by a 
wheedling detective or incredulous policeman ; and 
such questioning is as sure to come as it is to be but 
half remembered. A fair report, made at the time, 
in writing by an impartial magistrate, proves often 
the best evidence for the accused, and results in his 
immediate discharge. 

Inviting a statement from the accused before the 
committing magistrate is, of course, a very different 
thing from allowing his examination by the court on 
his trial to the jury, or even by the magistrate him- 
self, when sitting for the final hearing and disposition 
of the cause. Both form a part of the general Con- 
tinental system, but it is the interrogation from the 
bench, when the issue of Gtdlty or Not guilty is 
before the jury for decision, which becomes often and 
justly a matter of reproach. 

In France, for instance, the preliminary examination 
is conducted by the prosecuting officer, in order to 
determine whether there is or is not ground to pros- 
ecute ; but when the accused is once informed against 



EXAMINATION IN CRIMINAL PROCEEDINGS 135 

and put on trial, the judge is apt in practice to pre- 
sume his guilt, and exercise all his ingenuity to twist 
some admission out of him, or perhaps to distort 
what is said, so that the jury may receive a false im- 
pression from it. 

The embarrassment of the defendant when actually 
on trial, and confronting a charge of crime laid 
against him by the authority of the State, is naturally 
and necessarily greater than when, at an earlier stage 
of the proceedings, the State is simply inquiring 
whether it ought to be put to the expense of a prose- 
cution. The very nearness of the final decision, by a 
verdict which may convict and may set free, must in- 
tensify the excitement of his feelings. 

If the prosecutor is allowed to question him now, 
the interrogation is sure to be unfriendly : it may be, 
it is even likely to be, if conducted by the judge. 
Under such circumstances the contest between the 
questioner and the questioned is too unequal, and 
innocence may well seem guilt. Pomeroy, in his 
work on Constitutional Law} has not hesitated to say 
that the rule " that no person shall be compelled to 
be a witness against himself can only be supported by 
that intense reverence for the past which is so difficult 
to be overcome," and that "there can be no doubt 
that the States will gradually abandon this provision 
and reject it from their Constitutions." 

I doubt if the prediction comes true ; I doubt if it 
would be well that it should. There may yet come a 
revolution in social forces which would make even 
the use of torture tolerated in courts, were there no 

^ P- 155- 



136 EXEMPTION OF THE ACCUSED FROM 

fundamental law to forbid. The highest refinement 
in civilization has, in former ages, not been found 
incompatible with the highest refinement in cruelty ; 
and the nature of man changes little, beneath the 
surface, from generation to generation. Lynch law, 
within our own borders and among our own people, 
has been no stranger to the arts of interrogation, 
aided even by torture, at the foot of the gallows. 

Let us keep our constitutional guaranties as they 
are, but let us read them and apply them like reason- 
able men. It is enough to reject the use of force, 
without also refusing even to ask the defendant to 
speak for himself when first arrested, and so at a 
time when a frank statement may secure his im- 
mediate discharge. 

These views are not presented without full con- 
sideration. They are the result of thirty years of 
practice at the bar, during which I have acted some- 
times on behalf of the government in criminal prose- 
cutions, and sometimes for the defence, and of five 
years upon the bench, during which I have had oc- 
casion to sit both for the trial of such causes with a 
jury on the circuit, and for their disposition on 
proceedings in error, as a member of an appellate 
court. 

Nothing, of course, can now be done to remedy a 
practice so inveterate as that which has been the 
subject of this discussion, without the action of the 
legislature. What I would suggest is provision by 
statute that committing magistrates, upon whose 
warrant an arrest is made, should ask the defendant 



EXAMINATION IN CRIMINAL PROCEEDINGS 137 

when first brought before them, whether he desires 
to make a statement, explaining clearly that he is 
under no obligation to do so. If he then makes one, 
whatever he says should be written down at length in 
his own words, and the whole read over to him for 
any corrections or additions which he may wish to 
have entered. He should then be asked if he is 
willing to sign it. If he declines to make any state- 
ment, or having made one, is unable or declines to 
sign, the fact should be recorded. In case of a for- 
eigner unfamiliar with our language, the state- 
ment should be written down in his own, by an 
interpreter. 

This is no new or untried method of procedure. 
It is our present method which is the innovation on 
the practice of all lands and all times. 

I do not think I am mistaken in believing that 
the sober judgment of the country is tending to the 
belief that we have gone too far towards making the 
law serve as a shield of crime. There is a growing 
and just impatience of the delays and uncertainties of 
criminal procedure. The Supreme Court of the 
United States has reflected this sentiment in the 
course of its recent decisions in regard to the effect 
of the Fifth Amendment on the provision of the Inter- 
State Commerce Act. One statute after another 
was passed by Congress to enable the Inter-State 
Commerce Commission to compel witnesses before 
it to testify as to violations of the Act which it was 
created to enforce, and finally the court, limiting the 
scope of earlier decisions, held that a self-criminating 
answer could be compelled, under pain of imprison- 



138 EXEMPTION OF THE ACCUSED FROM 

ment, provided the witness were assured against any 
prosecution for the offence.^ 

One of its leading members ^ not long since de- 
clared before the American Bar Association that 
justice would be promoted if, in cases of criminal 
conviction, no writ of error should ever be allowed. 
" In criminal cases," he said, " there should be no 
appeal. I say it with reluctance, but the truth is that 
you may trust a jury to do justice to the accused 
with more safety than you can an appellate court to 
secure protection to the public by the speedy punish- 
ment of a criminal. To guard against any possible 
wrong to an accused, a board of review and pardons 
might be created with power to set aside a conviction 
or reduce the punishment, if on the full record it 
appears, not that a technical error has been committed, 
but that the defendant is not guilty, or has been 
excessively punished." ^ 

The denial of an appeal is in accordance with 
the English practice as respects their highest tribu- 
nal for the trial of criminal causes, but that court is 
presided over by members of the High Court of 
Justice, whose qualifications for correct decisions on 
points of law and evidence may well be superior to 
those of the ordinary trial judge in an American 
court. 

I venture to think that we should begin at the 
other end of the case to seek our remedy, and look 
for it in giving the defendant an opportunity to clear 

1 Brown v. Walker, 161 United States Reports, 591. 

2 Mr. Justice Brewer. 

2 Reports of the American Bar Association, xviii. 448. 



EXAMINATION IN CRIMINAL PROCEEDINGS 139 

or convict himself by a preliminary statement to a 
proper magistrate on his first arrest. 

It is no mean distinction to New Jersey that it is 
the only American State that has steadfastly adhered 
to this ancient plan.^ It shows the same spirit of 
independent judgment and sound conservatism which, 
under the lead of Patterson, made her influence so 
great and so healthful in the Constitutional Conven- 
tion of 1787. And more, perhaps, than anything 
else in her system of criminal administration, it has 
made " Jersey justice" proverbial along the Atlantic 
coast, to signify swift and certain retribution to wrong- 
doers, at the hands of the law. 

America has tried many experiments in the art of 
government. She has tried none more hazardous 
than that which has been the subject of this chapter. 
There are parts of the United States where more 
criminals are yearly put to death by Lynch law, or 
by the hand of some private avenger of blood, than 
by judicial warrant. And is it not true that, in those 
communities, public sentiment justifies such deeds of 
violence because the courts afford too uncertain a 
remedy; not because they are corrupt, but because 
they are inefficient? 

If we would make American justice as sure as 
American liberty; if we would banish pleas of tem- 
porary insanity from our court rooms, and mob 
violence from our frontiers, ought we not to begin 
by going back, — back to the ancient ways from 

1 General Statutes of New Jersey, i. 11 19, sec. 2. 



I40 EXAMINATION OF CRIMINALS 

which a false humanitarianism may have led us off? 
Leaving our Constitutions as they are, let them, with 
such aid as appropriate legislation can afford, be 
interpreted in their true spirit, and the State, in its 
judicial contests with those whom it charges with 
crime, given once more an equal chance. 



CHAPTER VI 

FREEDOM OF INCORPORATION 

THE Romans made the world over again, but 
among their many achievements none was 
more durable in its effects on the civilization of 
mankind than the invention of the corporation as an 
instrument of government and of trade. 

The very word "civilization" describes the condi- 
tion of the citizen of a municipal corporation, — a 
city or a city-State. 

In the nature of things, of course, every sovereign 
and independent government claims the attributes 
of perpetuity and personality. What the Romans 
did was to establish in men's minds the conception 
of perpetual personalities of a lesser rank, subordi- 
nate to the State ; each in its own small sphere sub- 
serving the interests of the State in the support of 
its political institutions, or the promotion of industry 
and commerce. 

The city-State, as a public corporation, had always 
been known since the beginning of history. It was 
the first form of any real political organization. 
The group of neighboring villages, uniting around 
some common fortress of defence into a tribal settle- 
ment, grew to be a city, and the city came to be a 
State; governing dependent communities, in which 



142 FREEDOM OF INCORPORATION 

perhaps other cities might be included. Such had 
been Nineveh, Babylon, Athens, What the Romans 
did, as far as municipal corporations are concerned, 
was to show how self governing cities could belong 
to a city-State, subject to it as to national affairs, 
and practically independent of it as to local affairs. 

They treated every such place as if it were a 
human being, possessing the right to life, liberty, 
and the pursuit of happiness in his own way, and 
yet owing allegiance to his sovereign and such pub- 
lic duties as allegiance implied. It was an appli- 
cation of the doctrines of private law, not to the 
relations of State and subject, but to the attributes 
of a new political subject which they had been the 
first to call into existence. 

The private corporation of Roman law was even a 
more perfect form of an artificial political person- 
ality; composed of several human beings but occupy- 
ing the place of one, with rights and duties of its 
own, distinct from theirs. It was formed on the 
model of the public corporation, but shaped with a 
freer hand. 

The Roman mind was accustomed to deal both 
with men and with property collectively. ^ The 
family was the social and political unit. Succes- 
sion to the property of the dead was by a universal 
title. Nothing seemed more natural than for men 

1 The effect of this national trait on Roman law is well stated in 
Cuq's Institutions Juridiqties des Remains, 50. In Roman politics, it 
is manifested by the composition of each of their legislative assem- 
blies. That of the centuries, as Niebuhr remarks (Hist, of Rome, i. 
340), reflects the theory which regards the State as a joint-stock 
company. 



FREEDOM OF INCORPORATION 143 

to associate in some close and permanent way for 
the accomplishment of any large undertaking. 

Guilds of workmen existed as early as the reign 
of Numa Pompilius, and the Twelve Tables con- 
firmed and probably extended their rights.^ Similar 
associations were soon formed by those who were 
not mere wage-earners, and had other ends in view 
than the protection of trade interests. 

Such a body of individuals was at first regarded as 
a mere society (societas). It did not differ essen- 
tially from the Greek iraipia. It was a fraternity, 
or, if for business purposes, a partnership. Later, 
came the investiture of some of these associations 
with the attributes of personality and perpetuity. 
In the phrase of the lawyers, they received a corpus ; 
the collective body being treated as something with 
a distinct life of its own. 

The juristic person thus created served two im- 
portant purposes. Holding the possessions of many 
natural persons, and acting with the united strength 
of all, it formed a counterpoise to the family, as a 
political factor in the State. It was also the natural 
opponent of that spirit of contempt for mercantile 
and mechanical pursuits which was universal among 
the upper classes of society among the ancients. 

The Roman familia, in its original type, was the 
closest possible association of men; and one that 
had, in itself, much of the character of perpetuity. 
It massed property, acquired by the labors of many, 
in one hand, with a power of absolute disposal. It 

i Niebuhr's Hist, of Rome, i. 432; Mommsen's Hist, of Rome, 
book ii., chap. 8. 



144 FREEDOM OF INCORPORATION 

put under the command of the head of the house, 
the paterfamilias, the services of his children and 
their children, who worked for his benefit on little 
better footing than his slaves, and with no greater 
reward, except that to be anticipated as heirs to the 
succession. In that capacity they were recognized 
as in some sort proprietors, even during his life;i 
and when that ended they were put so absolutely in 
his place that while they owned all his estate they 
also owed all his debts, as a personal obligation. 
The very name of such an inheritance, the " imiver- 
sitas," was one of those commonly used as descriptive 
of a corporation. 

The political influence of such a family was neces- 
sarily great. Only another family of equal means 
could stand up against it, until the private corpora- 
tion was invented. Then for the first time opposi- 
tion could be made by capital and labor combined 
in another way, but with similar strength and power 
of resistance. 

Then, also, for the first time, could mutual sup- 
port give tradesmen and artisans, associated together, 
a position of consideration and of assured perma- 
nence. All merchandizing on a small scale was held 
to be a low and mean pursuit, but some favor was 
accorded to those engaged in commerce in a large 
way. 2 What trade there was of the latter character 

1 Dig. xxvii. 2, de Liberis et posthtimis Heredibus instituendis , li. 
" In suis heredibus evidefitms apparet continuationem dominii eo rem per- 
ducere, ut imlla videahir hereditas fiiisse, quasi olim, hi domi7ii essent, 
qui etiam vivo patre quoda7nviodo domini existimantur' 

2 Cicero, de Officiis, i. 42. 



FREEDOM OF INCORPORATION 145 

in early Rome was conducted either by foreigners or 
by the heads of houses, acting through their slaves.^ 
The commonalty had no share in it. Indeed, no 
Roman citizen, at this time, could follow trade as a 
profession without forfeiting his political rights.''^ 
It was a base thing to engage in any form of labor 
for which he was to be paid by another. Into this 
new form of commercial association, however, the 
poorer classes soon found their way; and from the 
confidence of numbers and the absence of any limit 
to the capital stock which might be contributed, the 
corporation gradually rose to a position of impor- 
tance, if not of dignity. It could hold real as well 
as personal property, and by a title of perpetual suc- 
cession.^ Men of the highest rank found in them a 
convenient and profitable mode of investment. They 
often took shares in the name of some client or other 
dependent, and sometimes lent to a company in 
which they had no other interest. Plutarch tells us 
that Cato had, in the name of Quintus, one of his 
freedmen, two per cent of the capital of a trading 
concern, which was also a large borrower from him.* 
Senators were forbidden by law to engage in mer- 

1 Mommsen's Hist, of Rome, book iii., chap. 12; Institutes of 
Justinian, iv. 7, Quod aim eo qui hi aliena potestate est, etc., 2. A col- 
legium jnercatorum was instituted about B. c. 495, in connection with 
the temple of Mercury, but probably only for purposes of religious 
worship. Livy, ii. 27. 

2 Niebuhr's Hist, of Rome, i. 447. Tradesmen in ancient Egypt 
were also excluded from participation in public affairs. Wilkinson's 
Ancient Egyptians, ii. 57 (chap. 7). 

3 Corpus Inscriptionum Latinarum, x. 444. 

* Plutarch's Lives, Clough's translation, ii. 344. 
10 



146 FREEDOM OF INCORPORATION 

cantile adventures; but who was to know if they 
were shareholders in this or that corporation {colle- 
giimi) formed for gold-mining, or contracting for 
public works, or Egyptian trade P^ 

Under the influence of such causes, during the era 
of the republic, the formation of voluntary associa- 
tions for purposes not in themselves of an unlawful 
character was at first unrestricted. Afterwards, 
when the lawyers and judges had clothed such bodies 
with the character of an immortal person, statutes 
were enacted which either specified the purposes for 
which they could be organized, or stated purposes 
for which they could not be organized. Whichever 
form was adopted, they apparently still left the priv- 
ilege of incorporation open to all, provided the 
objects proposed were such as the law sanctioned. 

Special legislation was foreign to the ideals of 
Roman jurisprudence. These demanded that all in 
like circumstances should be treated alike. The 
Twelve Tables made it, as regards public prosecu- 
tions, at least, a constitutional rule, by the declara- 
tion : PRIVILEGIA NE IRROGANTO. 

All societies and corporations were, from the first, 
left free to regulate their internal management by 
such by-laws as they might agree on, provided only 
they were not contrary to any of the laws of the 
State. 2 

Towards the end of the republic, corporations 
had multiplied so greatly that the patricians became 
seriously alarmed. Political clubs, and ward organ- 

1 Mommsen's Hist, of Rome, book iii., chap. 12. 

2 Dig. xlvii. 22, de Collegiis et Corporibus, 4. 



FREEDOM OF INCORPORATION 147 

izations of the lower classes, were threatening to 
control all elections. Presidents {Magistrt) of some 
of the moneyed companies were vying with senators 
in their style of living. The companies of crafts- 
men must have come in direct competition with the 
workshops forming part of the establishment of every 
great Roman faniilia, and conducted by the labor of 
slaves. Membership in these was not confined to 
those of the same trade. It seems most natural to 
suppose that the merchants and physicians who, as 
several inscriptions testify, were on their lists, had 
put money into the common stock as an investment, 
from which to receive dividends from the profits. 
Capital was thus combined with labor, to render com- 
petition formidable, and no limitation on the total 
amount of the assets or capital stock of a Roman 
corporation was then, or ever, imposed by law. 

There had been also scandalous jobbery in letting 
State lands and State contracts to corporations in 
which public officials were shareholders. 

These causes combined to raise a general cry of 
Down with corporations ! and a statute was enacted in 
the year 64 b.c, which absolutely dissolved most of 
these organizations, leaving only a few, composed 
of those engaged in manual labor, such as the guilds 
of smiths and statuaries. It is probable also that 
this did not affect the peculiar form of quasi-corpora- 
tions {piiblica societas), with a large money capital 
divided into shares {partes, particulce) under which 
the public revenue was farmed and collected by pub- 
licans. Cicero styled this the ^^ ornamentiim civitatis 
et firmameiitum reipubliccs.'^ 



148 FREEDOM OF INCORPORATION 

A reaction soon followed, and the Clodian law in 
B.C. 58 revived most of the charters which had been 
annulled, and gave authority for the foundation of 
new corporations for many purposes. 

Under Julius Caesar, a restrictive policy was again 
pursued, and it became the general law of the empire 
that no corporation could be formed except for cer- 
tain specified purposes. These were few in num- 
ber, ^ and even as to those it is not improbable that 
those desiring incorporation were obliged, in each 
case, to submit their scheme to the emperor for 
approval, and receive what was in effect a special 
charter.^ 

To usurp the franchise of being a corporation 
without due authorization was a high crime, ^ Not- 
withstanding this, however, the constant solicitude 
of the Romans to preserve rights of private owner- 
ship led to the rule that upon the dissolution by 
law of a corporation formed for illegal purposes, the 
capital stock, if any, was to be divided up among its 
members.'^ 

A similar right to withdraw his share of the assets 

1 Dig. iii. 4, Quod citjuscunique Universitatis Nomine, etc., i ; Dig. 
xxxiv. 5, de Rebus dubiis, 21. They were undoubtedly more num- 
erous than those specially mentioned by way of explanation in these 
texts. There was, for instance, a company of shipowners so highly 
favored that by a decree of Constantine if any member of it died 
intestate and without heirs, his property, instead of escheating to 
the State, should go " ad corpus naviculariorum ex qtco fatale sorte stib- 
tractus est." Code, vi. 62, de Hereditatibtis , etc., i. 

2 See this point discussed in Mommsen's de Collegiis, etc., chap, iv., 
and his Hist, of Rome, book v., chap. 11. 

^ Dig. xlvii. 22 de Collegiis, etc., 2. 
* Ibid, 3. 



FREEDOM OF INCORPORATION 149 

was conceded to one who had violated another of the 
imperial constitutions issued by Marcus Aurelius, 
by which it was provided that no one should at the 
same time be a member of more than one body hav- 
ing full corporate privileges.^ 

The reason for imposing this prohibition, if not 
its extent, must be considered doubtful. Mommsen 
argues that it has come down to us in the Digest 
out of its proper connection, and must have been 
intended solely for funeral aid societies; no man 
needing to provide twice for the cost of his burial. 
Heinneccius ventures the conjecture that, as many 
of these organizations met monthly for convivial 
purposes, the law was meant to prevent their mem- 
bers from getting drunk too often. It would seem 
more natural to attribute the enactment to either 
of three causes: (i) The corporations were so pros- 
perous, that their members were becoming too rich. 
To restrain a man to investment in a single company 
tended to keep his accumulations within reasonable 
bounds. (2) The political influence of these organ- 
izations was a just cause of complaint. If the same 
man could belong to several, he might attach each 
to his interests, or, at least, imbue each with his 
own views on public affairs. It was in this way that 
F rs-nklin' s J'unto at Philadelphia spread its influence 
over the whole city. Each member, or each who 
could, formed a new club on the same model, and 
without telling his new associates that he also be- 
longed to the original organization, made it his busi- 
ness to put before them from time to time, as if they 

1 Dig. xlvii., 22 de Collegiis, etc., i, § 2. 



150 FREEDOM OF INCORPORATION 

had occurred to himself alone, all the measures to 
which that might be committed, and engage them 
in their support. ^ Whether secretly or openly at- 
tempted, such an extension of one man's and one 
society's influence was something to be dreaded in 
a government resting on no more solid foundations 
than that of a Roman emperor. (3) Again, the 
shareholder in a Roman corporation was often, if 
not generally, an active participator in the business 
which it conducted, or the trade to which it apper- 
tained. The Egyptian rule,^ that no artisan should 
follow more than one trade, because no man can do 
the best work in more than one, may have been in 
mind. ^^ Ne s'utor supra crepidain.'" So far as the 
societies or corporations of artificers were concerned, 
membership was largely hereditary. The general 
rule was that every man must follow his father's 
rank and trade. " Exemplo senatorii ordinis, patris 
originem municeps unusquisque sequatur. "^ He must 
also follow it in the same place; and if a college of 
workmen transferred the seat of their business to 
some new city, it was at the risk of being sent back, 
together with their children born there, to their 
original home.* 

The general incorporation law which seems to have 
existed during the empire is known only by frag- 
mentary references. The fullest of these contains 
no more than a single section, which relates to fun- 

1 I Franklin's Works, ed. 1834, pp. 40, 42. 

2 Wilkinson's Ancient Egyptians, ii. 57. 

^ Cod. Theodos. xii. i, de Decurionibus, loi ; Dictionnaire des 
Antiquites, Collegium, 1295. 
* Ibid. xiv. 7, de Collegiatis. 



FREEDOM OF INCORPORATION 151 

eral-aid societies. ^ Other sections probably con- 
tained similar provisions as to corporations formed 
for other purposes. This seems to me fairly implied 
from a reference in the Digest to certain corpora- 
tions '' quibus pis coeimdi lege permissum est,'' among 
which are mentioned those of craftsmen, since they 
are engaged in work necessary for the public inter- 
est. ^ The authority of some such statute is often 
invoked by bodies of this kind in dedicatory inscrip- 
tions, in phrases of description, applied to them- 
selves, as ^^ Ex S. C. P. R. quibus coire, conveniri, 
collegiiimqite habere liceat," ^ or, more briefly, " qtiibus 
ex S. C. coire licet.'' Corporations of smiths, ship- 
wrights, builders, musicians, castanet players, &c., 
&c., speak of themselves in this fashion.* It is not 
improbable that this statute, in its original form, 
was one of the many Julian laws. A collegium sym- 

1 This is found on a slab unearthed at Lanuvium, which probably 
was placed over the door of the hall where such a society was accus- 
tomed to meet. It is followed by a copy of their by-laws, prefaced 
by a warning to all those who propose to become members to read 
these first, and not to complain later that they did not understand 
what they were, or leave a controversy to their heirs. The by-laws, 
or " lex collegi" are arranged in separate sections, and provide mi- 
nutely for the rate of contribution, the kind of funeral to be furnished, 
and the conditions upon which it was to be obtained. 

2 Dig. 1. 6, de Jure Immnnitatis, 5, 12. Cf., however, Waltzing, 
Etude Historique sur les Corporations Professionelles chez les Romains, 
i. 118, 147. 

^ This is the phrase used in the Lanuvium inscription. That in- 
scription is given at length in Giraud's Novum Enchiridion Jtiris 
J?oma}ti, 662, and at the end of Mommsen's de CoUegiis et Sodaliciis 
Jiomanorum. 

* See Corpus Inscriptionum Lati7taruni,x. 1642, 5198; Azuni's Mar- 
itime Law of Europe, i., chap. 4, ad fin. 



152 FREEDOM OF INCORPORATION 

phoniaconmt is described in an inscription on an 
ancient columbarium found near Rome, as permitted 
to unite as such "^ lege Julia, ex auctoritate Augusti, 
ludorum cmisa." '^ The privilege of incorporation, 
however, so far as trades associations were concerned, 
was much extended at a later period, particularly 
under Alexander Severus in the third century. ^ 

Private corporations in some form were found 
wherever there was a Roman city. Whatever their 
object might be, the members met together much 
more often than is common in similar organizations 
of the present day. The officers apparently did not 
engross the management of affairs like the modern 
board of directors. 

The general meetings were often of a convivial 
character, even in the case of a burial club. In the 
corporations of fellow-craftsmen there was a strong 
sentiment of sodality. It was a common thing in 
the epitaph on a tradesman's tombstone to speak of 
him as "plus in suos, pins in collegium. " ^ An en- 
dowment was often held for the perpetual support of 
an annual banquet in honor of the founder.^ In one 
instance five such feasts were provided for every 
year.^ A common burial lot was often owned, — a 
practice still familiar in Europe.^ So the gratitude 
of a corporation to some one who had been its friend 
or patron was often shown by its assuming the per- 

^ Giraud's Enchiridion, 662. 

2 Dictionnaire des Antiquites, Collegium, 1293. 

3 Duruy's Hist, of Rome, v. 398. 

* Corpus Inscriptionum Latinariim, xii. 4393. 
^ Ibid. X. 444. 6 73/^. X. 5386. 



FREEDOM OF INCORPORATION 153 

petual care of his monument, A sarcophagus and 
family tomb in Ephesus was left by Apollonius, a 
comptroller of the provincial revenues, in charge of 
five designated colleges, one of which, at least, was 
composed of the freedmen and slaves of the emperor ; 
and he expressly declared that it should not go to 
his heirs as part of his estate.^ 

The Roman corporation, under the empire, as it 
is painted to us in lapidary inscriptions, seems ordi- 
narily to have been composed of men in quite mod- 
erate circumstances. The government looked upon 
them with distrust, on account of their political con- 
nections, and was slow to charter any for objects 
which did not fall within the terms of the general 
statute. Trajan was so far under the influence of 
this feeling that he refused to incorporate a fire 
company in Nicomedia, though it was especially 
requested by Pliny. Most of the corporations of 
which mention is made at this period have largely 
the character of fraternal associations of those pur- 
suing the same calling, for mutual aid and assist- 
ance. The objects to be promoted are rather the 
good of the members individually than any common 
enterprise. 

There existed the form of the modern corporation, 
but it was put to but few of the uses of which it was 
capable. The capital stock was never represented 
by certificates for transferable shares of the same 
par value. The paucity of such organizations for 
the prosecution of large business undertakings, and 
the slight importance, in respect to rights of prop- 

^ Corpus Inscriptionum Latinarum, iii. 6077. 



154 FREEDOM OF INCORPORATION 

erty, of those of the ordinary type, is well evidenced 
by the fact that corporation law, which is so large 
a head of modern jurisprudence, is not discussed, or 
so much as mentioned, in the Institutes of Justinian, 
the work prepared expressly for use 'as the first text- 
book to be put in the hands of the Roman law 
student. 

The Digest gives it some attention, but slight as 
compared with that which it receives in any modern 
code. In its treatment of the subject, it classes 
with corporations partnerships of the nature of the 
English joint stock company, that is, those composed 
of a considerable number of persons, under an agree- 
ment that the death of any of them should not dis- 
solve the organization, but his estate should succeed 
to his position in it. Under such a form {societas 
piiblicd) the farmers of the revenue customarily asso- 
ciated.^ They had a number of these societies con- 
ducting operations in the various provinces. Each 
had a corpus or was, in law, an artificial person, but 
all were united in a kind of "trust," with its head- 
quarters at Rome, under the general management of 
a single man {magister societatis^). 

This brief review of the development of private 
corporations among the people whose invention they 
were shows a fluctuating policy on the part of the 
government.^ 

^ Dig. iii. 4, i ; Dig. xvii. 2, pro Socio, 5, 59. 

2 Heineccius' Antiqiiitatum Romanorum Syntagma, iii. 23-27, 

§14. 

3 In the Theodosian Code, there are constitutions showing that the 
ancient guild corporations were decaying, and the emperors disposed 



FREEDOM OF INCORPORATION 155 

Springing originally from the free association of 
men engaged in the same pursuits; passing into the 
definite form of a distinct personality, with a certain 
resemblance to the familia, and like that with a 
religious cult of its own to bind it in one; feeling 
the strength of union, and commanding its influ- 
ence; now favored and now repressed by law, — these 
Roman corporations changed as Rome changed, and 
there is little in common between those of the 
republic and those of the Byzantine empire. 

If ancient history had been written as modern his- 
tory is coming to be, we should have a clearer con- 
ception of their effect on the social and economical 
life of their times. We could well spare whole 
books of Livy and Tacitus, devoted to petty wars or 
dull oratory, for some such crisp chapter as Green 
or Taine in their place might have given us, on the 
work of associated capital and labor in Roman 
trade and manufactures. As it is, much must be 
assumed, on the a priori method, and there cannot 
but be disagreement between scholars in many of 
their ultimate conclusions. Waltzing, the latest and 
most industrious author who has dealt with the sub- 
ject, is disposed to minimize the collective operations 
of corporations under the early empire, but gives 
them a new importance in its later ages. In these 
they became, as he paints them, the gigantic slaves 
of the State. Functions that they had at first 
assumed freely, as a matter of profit and contract, 
became a grievous burden from which they could 

to prop them up. Lib. xiv. 2, de Privilegiis Corporatorum Urbis Romce ; 
4, de Suariis, Pecuariis, et Suscepioribus Vint, ceterisque Corporatis. 



156 FREEDOM OF INCORPORATION 

not escape. They paid their taxes, so to speak, by 
doing service. 

The individual did this also, at Rome, as later 
under feudalism. There was little money in circu- 
lation, and little use for it. The rich seldom bought, 
because they or their houses were the great pro- 
ducers. Like the New England farmer of colonial 
days, they raised on their own estates, for the most 
part, whatever they consumed. The poor seldom 
bought, because the government fed them, and 
amused them too. 

But who was to bring their bread to Rome ? The 
great corporations early assumed the task, and were 
well paid for it. The 7iavicularii, whose grain ships 
were employed in this business, were men of means, 
and soon became men of position. Government con- 
tracts were as profitable then as now.^ There was 
also a special encouragement to those who engaged 
in this business. It was deemed such a public ser- 
vice that they were exempted from rendering any 
others. This, however, did not apply to share- 
holders in such a transportation company who took no 
active part in its affairs, and invested less than half 
their fortune in the enterprise.^ 

Gradually this immunity seems to have been 
turned into an instrument of oppression. Members 
of a corporation in any line of business, the main- 
tenance of which was necessary for the public inter- 
ests, were compelled to remain in it; and their 

^ Waltzing, Etude Hist07'ique sur les Corporations Professiottelles 
chez les Romains, ii. 45, 50. 

2 Dig. 1. 6, de Jure Immunitatis, 5, 3 ... 6. 



FREEDOM OF INCORPORATION 157 

property, outside of their shares in its capital stock, 
was, in some instances, at least, subjected to an 
implied hypothecation for its debts. ^ They were 
thus held irrevocably to the service in which they 
had once engaged. Their children were enrolled 
with them as members, and upon their death, of 
course, remained such.^ 

The State insisted that the public wants should 
be supplied by these public bodies. They must 
now bring the grain and bake the bread, not as a 
matter of mere adventure and contract, but of statu- 
tory duty. The individual life of the members in 
industrial corporations became largely merged in 
the corporate life. If one of them failed in busi- 
ness, his " college " must discharge his debts. If 
one of them committed a misdemeanor, his college 
might be obliged to pay a fine.^ 

Only a despotic government could thus crush into 
one a mass of citizens and hold them together by the 
strong hand. Private corporations in such a posi- 
tion were really nothing but forms of municipal 
government. 

But as we look at the course of Rome towards her 
purely municipal corporations, composed of those 
living on the same territory, we find it consistent 
and liberal. They were treated, indeed, with greater 
favor under the empire than under the republic. 
Nor was this without strong reason. It was by 

1 Code Theodos., 14, 3, de Pistoribus, etc. ; 13, 5, de Naviadariis. 

2 Waltzing, ii. 360. 

3 Code Theodos., 16, 4, de His qui super Religione contendunt, 5. 



158 FREEDOM OF INCORPORATION 

their aid that, first, Italy was united, and then the 
world brought under the rule of Rome. 

It was the settled policy of the republic to insti- 
tute throughout its dominions the largest possible 
number of small, self-governing municipalities. 
This tended directly to dissolve any sentiment of at- 
tachment among their inhabitants to the pre-existing 
Italian confederacies. It made each city a centre, 
and the only centre to which its people could look, 
except to Rome itself. It set up local rivalries where 
there had been local union. Nothing could have 
tended more to bring Italy together. The expedi- 
ent, as Mommsen says, was not generous, but it was 
effectual. And whether generous or not, it was pop- 
ular. It sent men back to the beginnings of social 
order — to the home rule of the village community. 

The emperors were wise enough to see that this 
same plan of maintaining and multiplying minor 
civic communities was the best way to reconcile 
the people to absolute power at the capital. The 
municipiuin and, to a large degree, the colonia, main- 
tained the forms of republicanism at the important 
centres of population, and the inhabitants, choosing 
their own local magistracy, and so regulating for 
themselves the greater part of their political con- 
cerns, hardly felt the pressure of imperial power. 
Britain was divided into thirty-three townships or 
communes, each with considerable powers of home 
rule. Of Roman provincial cities there are some, 
such as Cologne, Rheims, and Lyons,^ which have 

^ Lyons, in Roman days, was the seat of a number of private cor- 
porations. An old inscription in the collections of Gruter speaks of 



FREEDOM OF INCORPORATION 159 

survived in almost unbroken political continuity to 
the present day as witnesses to the sound principles 
of representative government upon which they were 
originally constituted.^ 

The dark ages found Europe under the influence 
of these political ideas; but what were now the 
dominant races, as they swept down from the North, 
looked upon each walled city only as another enemy 
to conquer and destroy. The ancient Germans con- 

" omnia corpora Lugduni licite coeimtiay The character of the 
modern city as a centre of socialism may find some explanation in 
this fact. 

1 The Roman municipium was almost autonomous. The ordinary 
colonia was subject to the laws of the mother country, whic]h it was 
said to resemble in miniature. Aulus Gellius, in his Nodes Attica:, 
lib. xvi. cap. xiii., explains this very clearly "■ Mufticipes ergo sunt 
cives Romani ex municipiis, legibus suis et sitojure ntentes, muneris ta7i- 
tum cum populo Romano honor arii participes, a quo mtmere capessendo 
appellati videntur, nullis aliis necessitatibus, neque ulla populi Romani 
lege adstricti. . . . Sed Coloniarum alia necessitudo est : nan enim veni- 
unt extrinsecus in civitatem, nee suis radicibus nittmtur; sed ex civitate 
quasi propagatcB sunt; etj'ura instituiaque omnia populi Romani, non sui 
arbitrii habent." 

The forum, conciliabulum, castrztm, and castellum, have sometimes 
been regarded as special forms of Roman municipal organization. 
The first two words, however, seem to be simply terms descriptive of 
the historical origin of towns which grew up around places once used 
as a forum or a place for consultation and debate. The magistrate 
who laid out a new road, e. g. the Appian way, often established upon 
it, also under his name, a market place and seat of justice, e. g. Appii 
Forum, and houses might afterwards cluster about it enough to con- 
stitute a village and perhaps to gain a new name. Municipal 
privileges might then be granted, and the inhabitants invested with 
Roman citizenship. See Sigonius de antique jure Italice, lib. ii. cap. 
XV. ; lib. iii. cap. iii. On the other hand, castrum and castellum, 
like oppidum and vicus, denoted places having no peculiar municipal 
privileges, but viewed simply as aggregations of inhabited houses. 
Ibid. lib. ii. cap. i. 



i6o FREEDOM OF INCORPORATION 

sidered it a badge of servitude to live in one. In 
their own villages the houses were scattered along 
at a considerable distance from each other. The 
feudal baron to whom a subjugated city was assigned 
built his castle out of the ruins of its defences, and 
laid down the law for the few inhabitants who might 
be suffered to remain there, at his will. With few 
exceptions, municipal privileges were for some cen- 
turies substantially destroyed, throughout all Europe. 
In the Codes of the barbarians we find no mention 
of them. The praefect, or mayor, is replaced by 
the feudal lord, the comes civitatis, or his recorder 
{ judex), ^ and less attention is paid to the city than 
to the parish. 

It is not till the beginning of the eleventh cen- 
tury that the benefits of incorporation seem to have 
been confirmed or extended to any organizations 
except those belonging to the Church. ^ Its abbeys 
and monasteries were supplemented by religious 
fraternities, some of which came finally to be any- 
thing but religious, and threw new discredit on the 
theory of corporate association for other than gov- 
ernmental objects. Such was that of the Knights 
Templar, founded by a few French crusaders at 
Jerusalem, by the name of the Poor Soldiers of the 
Temple of Solomon, and not taking the form of a 
corporation until long afterwards. 

Brotherhoods for mutual protection and aid were 

^ Lex Wisigothorum, lib. ii. 31 ; Rotharis Leges, ccxlviii. 
2 The first city charter, that to Leon in Spain, was granted in 1020. 
Prescott's History of Ferdinand and Isabella, i., xlv. 



FREEDOM OF INCORPORATION i6i 

common enough throughout the middle ages, but 
they had no special legal form or personality. By 
the side of these frith-guilds there grew up also the 
merchant guilds in the larger towns, and to them as 
well as to the craft guilds that sprang up among the 
wage-earners, charters were often granted. Some 
of these were probably constituted by a revival or 
continuation of a similar corporation, existing in 
the same place under the Roman laws. 

Henry III. of France went farther, and, by gen- 
eral edicts in 1582 and 1587, following the policy of 
Alexander Severus, legalized and directed the asso- 
ciation in every city, of those engaged in each of 
the leading arts or trades in a separate body, to 
which he gave a large regulative authority, both as 
to workmen and merchants. This system stood for 
two hundred years, but grew steadily more and more 
unpopular. In Paris it had thrown the entire trade 
of the city in the eighteenth century into the hands 
of six great corporations and forty-four lesser ones 
{coinmtmatites). 

Wherever, in fact, throughout Europe, trades were 
incorporated, as the very object of incorporation was 
to give a special privilege, and to some extent rights 
of monopoly, and as it often deprived the ordinary 
courts of jurisdiction over the members of the new 
body,^ neither the common people nor the higher 
orders viewed them with favor. Their essence was 
the promotion of self-interest by a policy of exclu- 
sion. Their practical effect was to raise up in each 
city an impe^ditni in impevio. They filled its offices, 

^ The Case of Sutton's Hospital, 10 Coke's Reports, 30. 
II 



1 62 FREEDOM OF INCORPORATION 

and obtained its sanction to whatever they thought 
most for their own benefit.^ Either alone or in con- 
nection with the magistrates, they often succeeded 
in excluding the citizens at large from the right of 
suffrage. 2 The livery companies of London are a 
familiar example of this. It was so in Scotland 
until the era of the Reform Bill. The guild-hall, 
as to-day, in London, was the city-hall. Tending 
to oligarchy, unpopular in principle, bottomed on 
class distinction, they began to fade away as civil 
liberty entered upon its conquest of Europe. Their 
last vestiges were swept away in France by the 
French Revolution, and in England few have sur- 
vived the Reform Bill and the Municipal Corpora- 
tions Acts by which its principles were finally 
worked out into a uniform system.^ 

As the guilds declined, the great foreign trading 
companies arose. 

Any such form of organization had been repressed 
by the development of the mediaeval trade-city. 
Each of these, in truth, was one vast trading com- 
pany. It had been an association of traders before 
it gained its municipal privileges, and it had pro- 
cured these largely in order to protect its trade. 
The German conception of a municipal corporation 
still was that it only represented the joint rights 
and liabilities of all its inhabitants. The Roman 
notion of a collective body, with rights and liabili- 

^ Merlin's Repertoire de Jurisprudence, vi. 446 et seq. 

2 Motley's " Rise of the Dutch Republic," i. 36. 

3 An interesting example of the survival of their political power, 
though in a greatly reduced form, in Germany is furnished in the 
constitution of the legislature of the free city of Hamburg. 



FREEDOM OF INCORPORATION 163 

ties of its own, had not yet been adopted, or, indeed, 
generally understood.^ It is, indeed, only of late 
years that Germany can be said to have fully and 
practically incorporated it into her jurisprudence. 
"To-day," wrote Mommsen, as late as 1843, "pub- 
lic corporations need most urgently the rights of a 
person, and loudly demand them ; but our timid cau- 
tion does not know how to interpret royal charters 
as common utility requires."^ 

The leagues by which neighboring cities in the 
middle ages bound themselves to each other from 
time to time, of which that of the Hanse towns was 
the most conspicuous, were not simply to strengthen 
their political power. They were in a certain sense 
great commercial partnerships. Their factories in 
foreign ports were like the department store of our 
own day. By the variety of their stock and its 
constant renewals they were able to command the 
market. By their political strength they could 
obtain concessions from the local sovereign which 
enabled them to dictate prices to his own subjects. 
The Hanseatic league, under the reigns of the 
Henrys, got possession of the best part of the carry- 
ing trade of England, and by their factory at Nov- 
gorod^ monopolized the commerce of northern 
Europe. 

^ Sohm's " Institutes of Roman Law," § 20. 

2 Treatise «£■ Collegiis, etc., 119. 

3 Under the fostering care of the league, Novgorod grew from a 
mean and inconsiderable town (into which it has since relapsed) to 
be a city of three or four hundred thousand people, holding the trade 
of Russia so firmly in its grip that it became a proverbial expression : 
Quis contra deos et magnam Novogordiam ? 



1 64 FREEDOM OF INCORPORATION 

The decay of feudalism brought new strength to 
every throne, because it broadened its foundations. 
These were no longer an artificial framework of mil- 
itary construction, but reached down to solid ground, 
that is, the loyal consent of the common people. 
Cities became less necessary as a balance against 
the power of the nobles and the Church, and their 
privileges began to shrink and lessen. It became 
the aim of kings to make commerce a matter of 
national instead of municipal direction. 

Pure business corporations, for foreign trade and 
adventure, were now first chartered. To the people 
at large they were generally odious, for they tended 
to repress business activity by the prohibition of 
competition. 

They were of two descriptions, — the " regulated 
company" and the joint-stock company. 

In those of the former kind, the original incorpo- 
rators were required to admit associates who might 
desire to trade within the territory embraced in the 
charter, on payment of a certain fee. The amount 
of this was generally left to be fixed by the com- 
pany: sometimes it was regulated by the State. 
Each member, whether one of the original set or a 
new-comer, traded separately for himself, on his 
own capital, and at his own risk. What he got by 
membership was the right to participate in the com- 
merce within the jurisdiction of the company, and, 
in a general way, to enjoy its protection. There 
was no common capital or stock in trade, except the 
small amount derived from entrance fees. 

The joint-stock company, on the other hand, 



FREEDOM OF INCORPORATION 165 

always had a common stock, and its trading was 
done on joint account under one management.^ 

The first of the great trading companies was 
incorporated in Burgundy by the Duke of Brabant, 
in 1248, by the name of the Brotherhood of St. 
Thomas Becket of Canterbury. Its main trade was 
with England, and in the next century it trans- 
ferred its seat to that kingdom, receiving a confirm- 
ation of its privileges from Edward III., and later 
from Henry VII., who changed its name to that of 
the Merchant Adventurers in London. ^ It was a 
"regulated company," and soon adopted a by-law 
forbidding any one to trade in the main ports in the 
Netherlands who had not first paid it an entrance 
fee of over sixty pounds. This charge was deemed 
oppressive, and the by-law was abrogated by a special 
Act of Parliament.^ A few years later a general 
law was enacted that no corporation should pass any 
by-law, without the consent of three of the great 
officers of State.* 

By the close of the reign of Elizabeth corporate 
monopolies had swept five-sixths of the foreign trade 
of England into the port of London, and placed it 
there in the hands of two hundred men, shareholders 
in this or that company of merchants.^ 

As new markets were opened by discovery and 
colonization, new charters closed them against all 

1 Adam Smith's " Wealth of Nations," iii. book v., chap. i. p. 108. 

2 Molloy, de Jure Maritimo, 453. Later it was known as the Ham- 
burgh Company. 

3 12 Henry VII., chap. 6. 
* 19 Henry VII., chap. 7. 

5 Hume's Hist, of England, iii. 284. 



1 66 FREEDOM OF INCORPORATION 

but the favored few. The Russian Company, the 
Eastland Company, the African Company, the Levant 
Company,^ and the East India Company were char- 
tered under Queen Elizabeth, and the Hudson's Bay 
Company followed in 1670.^ 

All the patents under which the English colonies 
in America were settled, beginning with that to Sir 
Walter Raleigh in 1584, with which the history of 
North Carolina opens, partook largely of the same 
character. That of Virginia, granted in 1606, was 
nothing else, and particularly provides that a Coun- 
cil in England shall have the " superior Management 
and Direction " of both the proposed colonies, by 
a title paramount to that of the local council which 
each might set up within its own territory.^ In 
other words, what the charter termed First Virginia, 
or the southern portion of the grant, and Second 
Virginia or the northern portion, were to be under 
the ultimate control of a board of directors sitting 
in London or Bristol. 

The original Massachusetts patent was probably 
granted with no thought on the part of the Crown 
officers that the patentees would meet and hold their 
courts of election and management anywhere but 
on the soil of England. It was a bold stretch of 
authority on the part of Winthrop to transfer their 

1 This company acquired extensive interests in Turkey, to which 
country it accredited consuls of its own choosing. It surrendered 
its charter in 1825. Ann. Register for 1825 ; Hist. 113. 

2 The Russian Company, the Eastland Company, and the Turkey 
Company were all " regulated " companies. Smith's " Wealth of 
Nations," iii. 109. 

^ Poore's " Charters and Constitutions," ii. 1890. 



FREEDOM OF INCORPORATION 167 

seat of government to Massachusetts Bay, and no 
one appreciated this more fully than he. So far as 
concerns the Plymouth Colony, the commercial char- 
acter of the enterprise is even more marked. Its 
promoters, so far as any pecuniary backing was con- 
cerned, were some seventy persons associated in a 
partnership styled the "Merchant Adventurers," 
with a capital of seven thousand pounds, acting first 
under a grant from the Virginia Company, and then 
under one from the patentees named in the charter 
of 1620 for Second Virginia, now, with its limits 
pushed two or three degrees further north, called 
New England. ""^ 

The grants which followed to the Duke of York 
and William Penn, and the Carolina charters, were 
still more proprietary in their nature. 

Other European nations at this time reached out 
for the control of new markets by similar means. 
Henry Hudson, sailing in the service of the Dutch 
East India Company, ^ whose charter preceded that 
of the English East India Company by a few years, 
laid the foundations of the New Netherlands, and 
the port of New Amsterdam (now New York) was 
soon in the hands of another- corporation, created to 
promote American trade, the " West India Company 
of the United Netherlands." In Sweden a company 
was incorporated for similar purposes in 1624, which 

1 Palfrey's " Hist, of New England," i. 187, 216, 221 ; Poore's 
" Charters and Constitutions," i. 992. 

2 This had a capital of $3,000,000, and the directors were chosen 
on a plan which gave the States-General, and also each of the main 
trading cities of the Netherlands a voice in the selection, Molloy, 
dejure Maritimo, 454. 



1 68 FREEDOM OF INCORPORATION 

resulted finally in the first settlements on the Dela- 
ware. Two years later Richelieu, under Louis XIII. , 
chartered the Company of New France, and gave it 
title to most of what is now the Dominion of Canada. 
Under the financial administration of Colbert were 
incorporated in 1664, the Company of the West 
Indies, that of the Senegal, and that of the East 
Indies, and in 1669 the Company of the North. ^ 
In 1695 the Scotch Parliament gave a perpetual char- 
ter to the Company of Scotland, trading to Africa 
and the Indies. 

How the English companies were regarded at 
the time, and what their influence was in the de- 
velopment of the English law of corporations, may 
best be seen by quoting some observations made 
by Defoe, in his Essay on Projects, published in 
1697. 

"A while before this," he says, after describing 
the introduction of the London penny-post, " several 
people, under the patronage of some great persons, 
had engaged in planting of foreign colonies, as 
William Penn, the Lord Shaftesbury, Dr. Cox, and 
others, in Pennsylvania, Carolina, East and West 
Jersey, and the like places, which I do not call 
projects, because it was only prosecuting what had 
been formerly begun. But here begins the forming 
of public joint-stocks which, together with the East 
India, African, and Hudson Bay Companies, before 
established, begot a new trade, which we call by a 
new name, stock-jobbing, which was at first only 
the simple occasional transferring of interest and 

^ Voltaire's Slides de Louis XIV et de Louis XV, iii. ch. 29. 



FREEDOM OF INCORPORATION 169 

shares from one to another as persons alienated their 
estates ; but by the industry of the Exchange brokers, 
who got the business into their hands, it became a 
trade, and one, perhaps, managed with the greatest 
intrigue, artifice, and trick that ever anything that 
appeared with a face of honesty could be handled 
with ; for while the brokers held the box, they made 
the whole Exchange the gamesters, and raised and 
lowered the prices of stocks as they pleased, and 
always had both buyers and sellers who stood ready 
innocently to commit their money to the mercy of 
their mercenary tongues. This upstart of a trade 
having tasted the sweetness of success which gen- 
erally attends a novel proposal, introduces the ille- 
gitimate wandering object I speak of as a proper 
engine to find work for the brokers. Thus stock- 
jobbing nursed projecting, and projecting in return 
has very diligently pimped for its foster-parent, till 
both are arrived to be public grievances, and indeed 
are now almost grown scandalous." ^ 

The exclusive privileges held under the proprie- 
tary charters for the American colonies occasioned 
much dissatisfaction on the part of English mer- 
chants, who wished to trade with them. Petitions 
for their revocation, on payment of a proper compen- 
sation, were twice presented to Parliament, early in 
the eighteenth century, and made the subject of 
serious consideration. They were rejected, the last 
in 171 5, but many years later some of these rights 
were extinguished by purchase, and the heirs of 

1 " The Earlier Life and Works of Daniel Defoe," Carisbrooke Li- 
brary, iii. 42. 



I70 FREEDOM OF INCORPORATION 

William Penn received on this account a perpetual 
pension from the British government.^ 

Monopolistic charters cannot be very numerous. 
The subjects of monopoly are soon exhausted. The 
trading charters, by the close of the seventeenth 
century, overlapped each other on every coast. As 
many banks were in existence at the great commer- 
cial centres as it was thought Europe could sustain, 
and each — the Bank of Venice, which had already 
flourished for five hundred years, and accumulated 
a capital of ^16,000,000, that of St. George at Genoa, 
that of Hamburg, the Bank of England, the Bank 
of Scotland, the Austrian Bank at Vienna — had cer- 
tain exclusive privileges from the State. ^ Capital 
was rapidly accumulating throughout Europe, and it 
became a subject of complaint that the natural chan- 
nels of investment had been closed against its free 
circulation. Nowhere was this felt more than in 
England. The demand for corporate franchises was 
always in excess of the supply. A continually in- 
creasing number had money to invest, who, without 
desiring themselves to embark actively in business 
enterprises, wished to put it to productive use, and 
yet where, at any time, they could hope to turn it 
back into cash without much delay. The result was 
the formation of many voluntary associations of the 
nature of partnerships, between a considerable num- 

1 Rogers' " Economic Interpretation of History," 329. 

2 The Bank of Amsterdam was a mere form of municipal organi- 
zation. The city was responsible for its deposits, and required all 
large payments to be made over its counters. It had no private cap- 
ital or stockholders, i Douglass' " Summary, &c., of the Settlements 
in America," 106, note. 



FREEDOM OF INCORPORATION 171 

ber of individuals, with some distinguishing com- 
pany name, such, for instance, as the "Amicable," 
or, as it was afterwards called, the " Hand in Hand " 
Insurance company, which finally obtained a charter 
in 1706.1 Some of these were successful: many 
were not, and the dealings in their shares brought 
to a climax the condition of things so graphically 
described by Defoe in the passage above quoted. A 
strong push was made in Parliament for the estab- 
lishment of a land bank in 1696, which should issue 
its notes in exchange for mortgages of real estate, 
but the ministry defeated the project by devising the 
scheme of issuing Exchequer bills, bearing a low 
rate of interest, and payable out of future revenue. 

Defoe now proposed a remedy for the stagnation 
of capital by the establishment of fifteen local banks 
in the nature of " factories " or commission-houses, 
each of which should stand ready to make advances 
on staple or manufactured goods, and act as a ware- 
houseman and factor for their sale. But how was 
their incorporation to be effected? 

"Every principal town in England," he replies, 
" is a corporation upon which the fund may be settled, 
which will sufficiently answer the difficult and charge- 
able work of suing for a corporation by patent or Act 
of Parliament. 

" A general subscription of stock being made, and 
by deeds of settlement placed in the mayor and 

1 Fire insurance was generally effected on the mutual plan ; marine 
insurance by large syndicates of capitalists. The city water supply 
was furnished by companies formed under royal patents, the earliest 
of which dates from the sixteenth century. Ashton's " Social Life 
in the Reign of Queen Anne," 50, 53, 86. 



172 FREEDOM OF INCORPORATION 

aldermen of the city or corporation for the time 
being, in trust, to be declared by deeds of uses, some 
of the directors being always made members of the 
said corporation and joined in the trust, the bank 
hereby becomes the public stock of the town, some- 
thing like what they call the rents of the town-house 
in France, and is managed in the name of the said 
corporation, to whom the directors are accountable, 
and they back again to the general court. For 
example: Suppose the gentlemen or tradesmen of 
the county of Norfolk, by a subscription of cash, 
design to establish a bank. The subscriptions being 
made, the stock is paid into the chamber of the city 
of Norwich, and managed by a court of directors, as 
all banks are, and chosen out of the subscribers, 
the mayor only of the city to be always one; to be 
managed in the name of the corporation of the city 
of Norwich, but for the uses in a deed of trust to be 
made by the subscribers and mayor and aldermen at 
large mentioned. I make no question but a bank 
thus settled would have as firm a foundation as any 
bank need to have, and every way answer the ends 
of a corporation." ^ 

Here we have probably the first suggestion in 
England of anything of the nature of a general in- 
corporation law for business purposes. One Act of 
Parliament, if Defoe's suggestion had been adopted, 
would have authorized the formation of fifteen differ- 
ent banks, in as many places, by such persons as 
might choose to subscribe the necessary capital. 

1 " The Earlier Life and Works of Daniel Defoe," Carisbrooke 
Library, iii. 55. 



FREEDOM OF INCORPORATION 173 

The State would favor no one, and name no one. 
It would simply allow money to talk. 

The essential elements which go to make up a 
moneyed corporation are : a lawful object, a compe- 
tent fund devoted to that object, suitable persons to 
direct its application, and an artificial personality 
through which they act. 

A general incorporation law can secure all these 
with some degree of certainty, unless an exception 
is to be made with respect to the selection of suit- 
able managers. Here it must rely on self-interest, 
but this rarely fails to answer the call. Those who 
contribute the capital are always anxious to protect 
it by placing it in the hands of competent directors, 
if their real object is to make money by the success- 
ful prosecution of the corporate business. It is only 
when their motive is to give the shares a fictitious 
value, and find their profit in selling out their hold- 
ings in the stock market, that their choice is apt to 
fall on men of a different class, rogues, or the dupes 
of rogues. 

England was the first country, after the fall of the 
Roman republic, to venture on the experiment of 
authorizing the formation, by any who chose, of 
moneyed corporations; but she limited this to cor- 
porations of a single class. The dissolution of the 
monasteries and general confiscation of the Church 
lands under Henry VIII. had taken away from the 
poor the means on which they had relied for no 
small part of their shelter and support. Some of 
them became common beggars, and others common 



174 FREEDOM OF INCORPORATION 

thieves. Acts of Parliament were soon passed to 
encourage the foundation of new charities of the 
nature of almshouses and workhouses; but they 
proved ineffectual. Men would not give largely for 
such purposes unless they were assured that what- 
ever they established would remain in perpetuity. 
In 1597,^ therefore, another statute was enacted, 
reciting the fact that the want of any grant of powers 
of incorporation had prevented the former legisla- 
tion from having its anticipated effect, and provid- 
ing that during the ensuing twenty years, any one, 
by a deed enrolled in the Court of Chancery, might 
found " one or more hospitals, maisons de Dieu, abid- 
ing-places, or houses of correction," and set over 
them such "head and members" as he might think 
proper, and that every such institution should be 
incorporated, and, being named by the founder, 
"should be a body politic and corporate, and should 
by that name of incorporation have full power, 
authority, and lawful capacity and ability to pur- 
chase, take, hold, receive, enjoy, and have, to them 
and to their successors forever, as well goods and 
chattels, as manors, lands, tenements, and heredita- 
ments, being freehold, of any person or persons what- 
soever, so that the same should not exceed the yearly 
value of ;^200 above all charges and reprises." The 
founder was also empowered to adopt a common seal 
for the corporation, and it was to have full capacity 
to sue or be sued in any courts. The only condi- 
tion imposed was that the endowment must include 
a conveyance of the absolute title to real estate " of 

1 39 Eliz., chap. v. 



FREEDOM OF INCORPORATION 175 

the clear yearly value of ten pounds." In the next 
reign this statute was made perpetual. 

The scheme which it embodied amply provided 
for every one of the essential elements of a moneyed 
corporation. The class of objects was particularly 
specified. A competent fund was secured by the 
provision as to the minimum amount of the founda- 
tion. The appointment of suitable persons to apply 
it to the proper purposes was rendered reasonably 
certain by confiding it to the founder. An artificial 
person of the fullest description was created. 

It seems strange that, with this simple and practi- 
cal plan of corporate organization under a general law 
before them, the English people were content to go 
on from the sixteenth to the nineteenth century with- 
out giving it a more extensive application. But the 
English people grew gradually into power. English 
kings found in their prerogative of granting charters 
of incorporation a cheap and ready way of rewarding 
favorites, or adding to their own revenues. It was 
not until the accession of William and Mary, and 
the Resolution of the House of Commons, in 1693, 
that " it is the right of Englishmen to trade in the 
East Indies or any part of the world, unless pro- 
hibited by Act of Parliament," that such charters 
lost their main value. The Hudson's Bay Company 
had obtained the last great trading monopoly from 
Charles II., and soon grew to be almost as immense 
a power in northern America as was the East India 
Company in southern Asia. Such vast concerns, 
continually becoming more and more imperial in 
their character by the advances of their trading-posts 



176 FREEDOM OF INCORPORATION 

to new frontiers, as well as by engaging in enter- 
prises outside of their chartered purposes, and build- 
ing up capitals without limit on watered stock, ^ 
brought the very name of corporation into disrepute. 
The unfortunate issue of most of the voluntary asso- 
ciations formed for business purposes, at the close 
of the seventeenth and beginning of the eighteenth 
century, was a further discouragement to any attempts 
to form permanent combinations of capitalists. Of 
the chartered companies also, several had proved 
unsuccessful. The African Company, chartered in 
1588, passed through three successive reorganiza- 
tions in the seventeenth century, under as many 
charters, each on the joint-stock plan. On the last 
occasion, the concern having failed with debts out- 
standing of ;^200,ooo, a majority of the stock- 
holders organized a new African Company, under 
another charter from the crown, buying up the assets 
of the old one at their value, and using the money 
thus realized to pay a forty-per-cent dividend to the 
creditors. The result was to leave the African trade 
in the hands of the same persons who had previously 

1 The Hudson's Bay Company began business with a paid-in 
capital of ^10,500. By a book-keeping entry this was trebled in 1690, 
and in 1720 it was trebled again, upon the payment of only ten per 
cent. During the Parliamentary investigation which terminated in 
the purchase by the government, in 1867, of its exclusive privileges in 
Canada, it appeared that its assets were of the value of over a million 
and a quarter pounds sterling, its ordinary annual net profits being 
;^i 10,000. Winsor's Hist, of America, viii. 60. It also, early in the 
eighteenth century, embarked in the business of life insurance and 
granting endowment policies to apprentices ; but the courts pro- 
nounced it an illegal usurpation. Child v. Hudson's Bay Company, 
2 Peere Williams' Reports, 207 (1723). 



FREEDOM OF INCORPORATION 177 

controlled it, to be conducted in the same corporate 
name, and to wipe out sixty per cent of their obli- 
gations.^ They had little better success, however, 
under their new name, and in 1750 their franchise 
was repealed on account of utter bankruptcy, and a 
"regulated" company formed, by Act of Parliament, 
to succeed them, which was expressly prohibited 
from trading in its corporate capacity.^ 

The Scotch company, chartered in 1695, to trade 
to Africa and the Indies, accomplished nothing but 
the foundation of a short-lived colony at Darien, and 
the stock soon fell to ten per cent of its par value. 
The shares were largely held by persons of political 
influence. Their support was needed to carry through 
the union between England and Scotland in 1707,. 
and it was secured by the insertion of a clause in 
the Articles of Union providing that all the share- 
holders should be repaid the full amount of their 
investment from the English treasury. The oppo- 
nents of the union were not slow to call this transac- 
tion "the selling of the country." ^ 

In 171 1 the South Sea Company began its singu- 
lar career, which, so far as any foreign commerce 
was concerned, ended in 1748.* Its shares were so 
artfully manipulated, that, when in 1720 the capital 
was increased for the purpose of funding the national 
debt, by issuing its stock in exchange for govern- 
ment annuities, the final subscriptions were made 

^ Curson v. African Company, i Vernon's Reports, 121. 
2 Smith's "Wealth of Nations," iii. 115, 122. 
^ I Douglass' " Summary, &c., of the Settlements in America," 45, 
note. 

* Smith's "Wealth of Nations," iii. 12S. 
12 



178 FREEDOM OF INCORPORATION 

at a premium of nine hundred per cent, and shares 
thus taken at ;!^iooo, of the par value of ;^ioo, were 
almost immediately sold at ;£i200, in the London 
market.^ A few weeks later the price had fallen to 
yCiSS) 3-^^ Parliament was busy in confiscating the 
estates of the directors and passing a bill to suppress 
the " infamous practice of stock-jobbing." As the 
doings of the company were brought to light, it 
appeared that an over issue of stock, to the amount 
of half a million pounds, had been made, to aid in 
securing the passage of the Act authorizing the last 
increase of capital, ten thousand pounds of which 
had gone to one of the king's mistresses. The pub- 
lic creditors who had exchanged their annuities run- 
ning for ninety-nine years, for stock in the company 
to the amount at par of no more than what would 
have been their receipts from the government for 
eight years and three months, were forced to be con- 
tent with a dividend of 33!^ per cent, thus saving less 
than three years' income out of ninety-nine.^ 

A general feeling of distrust now took possession 
of the public mind as to all forms of stock invest- 
ment. The "Bubble Act" of 1720 was designed to 
prevent the formation of any companies for specula- 
tive purposes, and to a large extent it was for many 
years successful. Gradually, however, as a new gen- 
eration came on the stage, the spirit of stock gam- 
bling revived. It became a practice in London, 
both of the three incorporated insurance companies 
and of the individuals who engaged themselves as 

1 Swift's Works, Nichols' ed., xix. 253, note. 

2 Mahon's " History of England," i., chap. xi. 



FREEDOM OF INCORPORATION 179 

underwriters, to offer to grant policies on lives to 
persons having no interest in the life insured. When 
George II. went to Bavaria in 1743, to take command 
of his army at the battle of Dettingen, policies were 
issued on his life, at a premium of twenty-five 
per cent. A few years later, the same speculators 
were writing policies on the life of the Pretender, 
and similar wagers were laid by their successors on 
the Exchange or at Lloyd's, on the lives of other 
public characters, until Parliament interfered by the 
passage of the "Gambling Act " of 1774.^ 

As early as the thirteenth century, there arose in 
France a practice of forming limited partnerships, 
one or more of the members of which conducted the 
active business and were alone responsible for the 
debts, the others simply contributing a certain cap- 
ital and risking nothing but that. Colbert extended 
it, and made it the subject of careful regulation by 
law, in 1673. These ^' sociith en commandite''' offered 
an attractive mode of investment, and came into 
wide use in other parts of the Continent, ^ though 
never introduced into English law. While without 
the stability of a corporation, they had most of its 
other advantages, and in addition were always man- 
aged by those whose liability to creditors gave them 
the deepest personal interest in the success of the 
enterprise. 

John Law, while the South Sea Company was still 

1 Smith's " Wealth of Nations," iii. 122. 

2 Their form has never been essentially varied. Code de Com- 
mercey Art. 23 ; Law of July 24, 1867. 



i8o FREEDOM OF INCORPORATION 

in possession of the public confidence in England, 
carried the notion of supporting public finance upon 
private trading adventure across the Channel, and 
found a favorable reception at the French court. In 
17 1 8 a charter was granted, at his instance, to the 
Company of the West, and it was endowed with the 
whole valley of the Mississippi, on condition of 
offering its stock of a hundred million livres, at par, 
to- the holders of the government paper currency, 
which was then at a discount of over sixty per cent. 
In a few months it absorbed all the old trading com- 
panies formed under Colbert (into one of which the 
Company of New France had been merged), and 
assumed the name of the Company of the Indies. 
A royal bank, at Paris, with five branches in other 
cities, was also organized in 1718, and consolidated 
with Law's Company two years later. The premium 
on the Company's shares rose even higher than that 
upon those of the South Sea Company at London, 
but it soon flooded the country with a new style of 
paper currency no better than that which it had 
absorbed. In May, 1720, a royal decree scaled these 
notes down to half their face, and a financial panic 
followed which shook the very foundations of society 
and put an end to any extension of corporate under- 
takings in France for the rest of the century, ^ 
although the Company of the Indies itself weathered 
the storm, by the aid of the government, and its 
shares were selling at more than ten times their 
par value in 1747.^ 

1 Voltaire's Sihles de Louis XIV et Louis XV, iii. chap. 2. 

2 Douglass' " Summary, &c.," 80, note. 



FREEDOM OF INCORPORATION i8i 

There grew up, however, something very like the 
corporation in the shape of a voluntary association, 
styled the societe anonynie, or societe par actions. It 
differed from other forms of partnership in not bear- 
ing the name of any of the partners, but a company 
name, indicative of the business which it was to 
pursue, and in that the interests of each member 
were represented in ^^ actions'' or shares, which were 
transferable. The management of its affairs was in 
the hands of one or more common agents, who were 
personally responsible for all the debts of the con- 
cern, although the rest of the shareholders were only 
liable to lose what capital they had put in.^ 

For France, and indeed for any nation following 
the principles of the civil law, some such modifica- 
tion of the partnership system was the most natural 
mode of advance towards the establishment of the 
corporation. 

The theory of partnership in England and America 
is that it is a form of agency. The firm is the agent 
of each member, with power to bind him individ- 
ually to the performance of its obligations, and, 
reciprocally, each partner is the agent of the firm 
to contract obligations in its behalf within the limits 
of the partnership business. On the other hand, the 
Roman law and the modern civil law recognize no 
solidarity between ordinary partners which would 
render any of them liable for the acts or contracts 
of another, who had not had special authority to 
bind the rest.^ 

1 Merlin, Questions de Droit, xiv. 323. 

2 See Pothier, Traite du Contrat de Societi, §§ 96, 103, 104. 



1 82 FREEDOM OF INCORPORATION 

The society aiionyme of French law was originally 
a partnership conducted in the name of one of the 
members, otherwise styled a conipte en participation. 
The others were strictly secret partners. To credit- 
ors of the firm they came into no relation and under 
no liability. To the active partner they owed an 
obligation to make the contribution which they had 
agreed to make to the capital of the concern, and, 
furthermore, if he were held personally liable to 
creditors to an amount which the capital would not 
enable him to satisfy, then to contribute to indem- 
nify him for what he might pay in excess of the 
capital, so that each partner would sustain an equal 
loss.^ 

As thus used, the term was applied only to part- 
nerships between a few persons not involving any 
large enterprise ; those embracing more persons and 
formed for large undertakings being styled " co7n' 
pagnies.'"^ Later, by a gradual change of meaning, 
it came to be used only for such companies, with a 
share capital, and name descriptive of their object ; 
and this is its signification in the Code of Com- 
merce, framed by Napoleon in 1807."'' 

As there described (Art. 29 et seq.), it is identi- 
cal with the private business corporation, except that 
it cannot be organized in perpetuity. A reasonable 
term of duration must be fixed in the articles of 
association. 

By the code, as originally adopted, no such asso- 

1 Pothier, Traite du Contrat de Societi, §§ 60-63. 
^ Pardessus, Cours du Droit Commercial, iv. 136. 
8 Rogron's Code de Commerce Explique, 15. 



FREEDOM OF INCORPORATION 183 

elation could thereafter be formed without the con- 
sent of the government. That could only be had 
upon a petition from the promoters of the enterprise, 
stating all the particulars regarding it, and a report 
from the departmental prefect on their moral char- 
acter and pecuniary responsibility. This was passed 
upon by the executive authority of the government 
as an administrative measure. Upon the approval 
and registration of the articles of association, the 
new company became an artificial person. The 
managing officers were not to be responsible for its 
debts. ^ 

These provisions have been substantially retained 
ever since ^ in the statutes of France, except that, in 
1867, the requirement of the authorization of the 
government before the formation of such an organ- 
ization was repealed, and in place of this, regulations 
prescribed as to the minhmtni number of original 
incorporators, the accumulation of a reserve fund, 
shareholders' meetings, and other matters incidental 
to the proper constitution and management of such 
a body. This places France under what is equiva- 
lent to a general incorporation law, applicable to all 
kinds of business, save a few specially excepted.^ 

1 Code of Commerce, Arts. 29, 32, 34; Mourlon's Repetitions 
Ecrites sur le Code Civil, iii. § 859; Merlin's Repertoire de Jurispru- 
dence, xxi. 277. 

2 By the law of May 23, 1863, authority was given to form a part- 
nership of a similar character, without any petition for a license, by 
the name of societe h responsabilite limite'e. This was repealed 
in 1867. 

^ Law of July 24, 1867. Proprietors of land may also form quasi- 
corporations, for the construction of works of common benefit. Law 
of June 21, 1865. 



i84 FREEDOM OF INCORPORATION 

Turning now to the United States, we find that in 
most of the American Colonies charters for private 
corporations were occasionally, and for public corpo- 
rations often, granted by the Governor. Such were 
those of the city of New York, from the Dutch 
Governor, in 1657, ^ and the English Governor, in 
1686 and 1730. 

He was considered to speak for the crown or, as 
the case might be, for the proprietaries. Occa- 
sionally the grant came directly from the superior 
authority.'^ In Maryland, the city of Annapolis was 
chartered by Queen Anne in 1708, but in 1667 
St. Mary's City was incorporated by a formal docu- 
ment running in the name of " Caecilius, absolute 
lord and proprietary of the provinces of Maryland 
and Avalon, Lord Baron of Baltimore," &c. ^ Sev- 
eral of our colleges — Princeton, the University of 
Pennsylvania, and Rutgers — had charters from the 
Governor. Harvard, Yale, and Brown were incor- 
porated by the colonial legislatures, not without 
grave hesitation as to their powers in this respect.'^ 

1 A similar grant from Governor Kieft in 1644 to the settlers of 
Hempstead was upheld as a sufficient charter of incorporation by Chan- 
cellor Kent in the case of Denton v. Jackson, 2 Johnson's Chancery 
Reports, 320. 

2 Wilson's Works, ii. 561, Andrews' edition. 

3 3 Bland's Chancery Reports, 416, note. 

* The Massachusetts charter was adjudged, in 1684, by the High 
Court of Chancery in England to have been forfeited by several acts 
of usurpation, among which was this incorporation of Harvard Col- 
lege. In view of that decision, and at the suggestion of Judge Sewall, 
of Massachusetts, when Yale College sought a charter from Con- 
necticut in 1701, the bill prepared was purposely shorn, as far as 
possible, of any expressions indicating that it was what it was meant 
to be. Papers of the New Haven Colony Historical Society, iii. 413. 



FREEDOM OF INCORPORATION 185 

The founders of William and Mary, Columbia, and 
Dartmouth, not caring to venture on so doubtful a 
title, secured their charters from the crown. Mu- 
nicipal quasi-corporations were freely created by 
the colonial assemblies from the first, and in 1639 
Massachusetts also ventured to incorporate an artil- 
lery company, which still exists. Religious socie- 
ties for the support of public worship were also often 
constituted corporations by special statutes. ^ Con- 
necticut went much further in 1732, by granting 
a perpetual charter to a society for promoting and 
carrying on trade and commerce with any of "his 
Majesties Dominions, and for encouraging the 
Fishery, &c., as well for the common good as their 
own private interest." ^ The happy possessors of so 
generous a franchise, which the "&c. "seemed to 
make capable of indefinite expansion, forthwith set 
up business as a land-bank. The subscribers to its 
stock paid for it in mortgages, on the credit of which 
the " New London Society United for Trade and 
Commerce, in Connecticut," as it styled itself, issued 
bills of credit, payable to bearer, in which it was 
recited that they " Shall be in Value Equal to Silver 
att Sixteen Shillings per Ounce, or to Bills of Pub- 
lick Credit of this or the Neighboring Governments, 
and shall be accordingly accepted by the Treasurer 
of said Society, and in all Payments in said Society 
from time to time." Currency of this sort was set 
afloat in a few months, to the amount of several 
thousand pounds, and of course speedily gravitated 

1 See Revised Statutes of New York, iii. 298, sec. 12. 

2 Colonial Records of Connecticut, vii. 390. 



t86 freedom of INCORPORATION. 

below par, and, by Gresham's law, began to drive 
the bills of the Colony itself out of circulation. 
The charter was granted in May, and in the follow- 
ing February a special session of the Assembly was 
called to remedy the usurpation. It was promptly 
resolved that stock paid for by mortgages was not 
paid for at all; that the charter had been forfeited; 
and that it ought to be and was repealed.^ Applica- 
tion having been made at the next session for a 
revival of the charter, with due limitations, the 
question of the power of incorporation which might 
belong to the Colony was brought up and argued at 
length by counsel, with the following result : — 

" On consideration thereof, the following questions were 
put, and resolved as follows, (viz:) 

" I St. Whether it be within the authority of this govern- 
ment, to make a company or society of merchants ? 

" Resolved, That although a corporation may make a frater- 
nity for the management of trades, arts, mysteries, endowed 
with authority to regulate themselves in the management 
thereof: yet, (inasmuch as all companies of merchants are 
made at home by letters patents from the King, and we 
know not of one single instance of any government in the 
plantations doing such a thing,) that it is, at least, very 
doubtful, whether v/e have authority to make such a soci- 
ety ; and hazardous, therefore, for this government to pre- 
sume upon it. 

" 2ly. Whether it be for the peace and health of this 
government, to create such a society? 

"Resolved, That such a society of merchants, whose 
undertakings are vastly beyond their own compass, and 

1 Colonial Records of Connecticut, vii. 421. 



FREEDOM OF INCORPORATION 187 

must depend on the government for their supplies of 
money, and must therefore depend on their influence on 
the government to obtain it, it is not for the peace and 
health of the government."^ 

Provision was then made for forcing the subscribers 
to the stock of the defunct company to contribute 
so much as might be necessary to redeem its bills, 
and they were allowed to substitute mortgages to 
the Colony for those given to the company, receiv- 
ing in return Colony bills, with which to retire the 
company bills.^ 

In Massachusetts and New Hampshire similar 
companies were organized, at about the same time, 
by voluntary association, to put out paper money; 
and in 1739 two more were formed in Massachusetts 
for the same purpose, one among the merchants 
and tradesmen, and another among the farmers and 
mechanics, of whom eight hundred were enrolled 
among its members.'^ Governor Belcher opposed 
both schemes, and the result was an Act of Par- 
liament, extending the "Bubble Act" of 1720 to 
the Colonies.* This prohibited, under heavy penal- 
ties, the association of more than six persons, with 
a joint stock, who had not been incorporated by 
law, and put an end, during the remainder of the 
colonial period, to all enterprises of the character 
described.^ All subsequent organizations here on 

1 Colonial Records of Connecticut, vii. 449. 

2 Ibid. 450. 

^ Sumner's " History of American Currency," 28. 
* Hildreth's " History of the United States," ii. 380. 
^ The Act was repealed in 1825. 



i88 FREEDOM OF INCORPORATION 

a joint-stock plan sought a charter from Parliament 
or the Crown. ^ 

During the course of the Revolution, in 1781, a 
government bank was chartered by the Congress of 
the Confederation. It was styled the Bank of North 
America, and its authorized capital put at ^10,000,000, 
though but a small part of this sum was in fact sub- 
scribed. The right of Congress to do this was, to 
say the least, doubtful, and it was soon glad to 
accept a charter from Pennsylvania. 

In the Convention that framed the present Con- 
stitution of the United States it was proposed to 
include in the enumeration of the subjects of legis- 
lative power, that of forming corporations. Madi- 
son and Pinckney both introduced resolutions to this 
effect, 2 but they were smothered in committee. 
Madison afterwards sought to secure such a pro- 
vision at least for the formation of companies to 
construct roads and canals connecting different 
States, but his motion was defeated by a vote of 
eight States to three. Rufus King, in opposing 
any general grant of a power of incorporation, said 
that the States would be prejudiced and divided into 
parties by it, and that the public generally would be 
apprehensive of mercantile monopolies.^ The Bank 

1 Such was the Ohio Company, incorporated in 1749. "When the 
Susquehanna Company, of Connecticut, in 1753, proposed making an 
application for a charter, they obtained a recommendation from the 
Colonial Assembly. Colonial Records of Connecticut, x. 378. In 
Maryland, no private charter was ever granted prior to the Revo- 
lution. McKim V. Odom, 3 Bland's Chancery Reports, 418. 

2 Madison's "Journal of Debates," 549 (Scott's ed.). 

3 Ibid. 726. 



FREEDOM OF INCORPORATION 189 

of the United States, which the first Congress char- 
tered for twenty years, under the lead of Hamilton, 
on the ground that other provisions of the Constitu- 
tion implied that right, and the financial neces- 
sities of the country required its exercise, did not 
fail to justify Mr. King's anticipations. Its re- 
charter afterwards became one of the leading politi- 
cal issues of the day, and the measure finally 
failed, because the people, as a whole, were afraid 
of it. 

At the time of these discussions in the Constitu- 
tional Convention, an association of merchants for 
banking purposes had existed for several years in 
the city of New York. Alexander Hamilton had 
drawn their papers in 1784. It rested on nothing 
but a partnership agreement, and they were com- 
pelled to wait for some years before obtaining a 
charter from their State. Seven years more elapsed, 
and Aaron Burr was applied to by some capitalists 
who proposed to organize a second bank. He did 
not venture to ask openly for such a franchise, but 
had a petition presented to the Legislature for the 
incorporation of a company to supply the city with 
water. The capital was to be ^2,000,000, and one 
section of the bill which he prepared provided that 
any surplus, not used in the construction of the 
water-works, "might be employed in any way not 
inconsistent with the laws and Constitution of the 
United States, or of the State of New York." A 
charter to the " Manhattan Company " was granted 
in this shape in 1799, and the Bank of the Manhattan 
Company was soon afterwards established, and still 



I90 FREEDOM OF INCORPORATION 

exists, though the city had to wait for other agencies, 
in later years, to supply it with water. ^ 

It may be safely asserted that private business 
corporations were always viewed with disfavor by 
the mass of the community in every American 
colony; and also in the States which succeeded 
them, until the eighteenth century came to its close. 
The influence of English commercial corporations in 
engrossing American trade had rendered them justly 
obnoxious to the people, and there was similar cause 
of complaint against English manufacturing com- 
panies. The hatting industry offers a fair example. 
Beavers were originally so numerous here, that by 
1 73 1 ten thousand beaver hats were annually made 
in New York and New England, largely for export. 
The Company of Feltmakers of London thereupon 
petitioned Parliament to prohibit the future exporta- 
tion of such hats. An Act to that effect was imme- 
diately passed, which also forbade any American 
hatter to employ more than two apprentices; and 
this remained the law until the Revolutionary 
War. 2 

The people of Great Britain, as a whole, shared 
the same sentiments. 

In 1733 Lord Bathurst, who, though he had been 
an earnest antagonist of the South Sea Company, 
had had ample time since its collapse to revise any 
opinion he might have formed during the parlia- 
mentary struggle, wrote thus to Dean Swift, who 

^ Parton's " Life of Aaron Burr," 238. 

2 Documentary History of New York, i. 761, note. 



FREEDOM OF INCORPORATION 191 

had asked his good offices in regard to a matter 
affecting a certain corporation : — 

"All corporations of men are perpetually doing 
injustice to individuals. I will attend it, but am 
as much prejudiced against them as it is possible, 
though I know nothing of the man, nor the matter 
in question. I have often reflected (from what cause 
it arises I know not) that though the majority of a 
society are honest men, and would act, separately, 
with some humanity, and according to the rules of 
morality, yet, conjunctively, they are hardhearted, 
determined villains."^ 

Hume, in his "History of England," published 
some twenty years later, in commenting on the times 
of Henry VII., observes that one check to industry 
then "was the erecting of corporations, an abuse 
which is not yet entirely corrected." ^ Adam Smith, 
in his "Wealth of Nations," which appeared in 1776, 
declares that without a monopoly no joint-stock 
company can long carry on any branch of foreign 
trade, as its directors cannot be relied on to give 
it that unremitting care and attention which indi- 
viduals are willing to bestow on their own affairs. 
"The only trades," he adds, "which it seems pos- 
sible for a joint-stock company to carry on success- 
fully, without an exclusive privilege, are those of 
which all the operations are capable of being reduced 
to what is called a routine, or to such a uniformity 
of method as admits of little or no variation. Of 
this kind is, first, the banking trade; secondly, the 

1 Swift's Works, Nichols' ed., xii. 452. 

2 2 Hume's Hist., chap. 26, p. 256. 



192 FREEDOM OF INCORPORATION 

trade of insurance from fire, and from sea risk and 
capture in time of war; thirdly, the trade of mak- 
ing and maintaining a navigable cut or canal ; and, 
fourthly, the similar trade of bringing water for the 
supply of a great city. . . . To establish a joint- 
stock company, however, for any undertaking, merely 
because such a company might be capable of manag- 
ing it successfully ; or to exempt a particular set of 
dealers from some of the general laws which take 
place with regard to all their neighbors, merely be- 
cause they might be capable of thriving, if they had 
such an exemption, would certainly not be reason- 
able. To render such an establishment perfectly 
reasonable, with the circumstance of being reduci- 
ble to strict rule and method, two other circum- 
stances ought to concur. First, it ought to appear 
with the clearest evidence that the undertaking is 
of greater and more general utility than the greater 
part of common trades ; and, secondly, that it requires 
a greater capital than can easily be collected into a 
private copartnery. If a moderate capital were 
sufficient, the great utility of the undertaking would 
not be a sufficient reason for establishing. a joint- 
stock company; because, in this case, the demand 
for what it was to produce would readily and easily 
be supplied by private adventurers. In the four 
trades above mentioned, both those circumstances 



concur. 



1 



Similar opinions were generally held throughout 
Europe. The Abb6 Morellet, one of the leading 
French encyclopedists, and a member of the Insti- 

1 Smith's " Wealth of Nations," iii. book v. chap. i. pp. 145, 146. 



FREEDOM OF INCORPORATION 193 

tute, had given strong expression to them, and for- 
tified his positions by statistics of the fate of over 
fifty trading corporations, scattered over Europe, 
which, during the preceding hundred and fifty 
years, had been formed, only to bring ruin to 
stockholders and creditors.^ 

With the single exception furnished by the' Act 
of Elizabeth to encourage charitable foundations, 
which has been described, no sovereign power in 
modern times had established anything in the nature 
of a general incorporation law. The privilege of 
combination into a political body clothed with the 
attitude of perpetuity, or at least of duration for 
a certain term, not subject to abridgment by the 
accidents of death, and whose obligations were dis- 
tinct from those of its members, was universally 
deemed a matter of too grave importance to be left 
free to all. A special charter or license, from the 
crown or legislative assembly, or proprietary lord, 
was therefore held to be a necessary prerequisite to 
the existence of any such organization. An ancient 
custom, indeed, might found a prescriptive title; 
but only because long usage implied an original 
grant, although the record or other evidence of it 
might be lost. 

The radical change of views, in the present cen- 
tury, which has brought such laws into existence in 
almost every civilized State, has been the result of 

1 The only great company of this kind which has been conspicu- 
ously successful in recent times, under a monopolistic charter, is the 
Netherlands Trading Company, chartered in 1824, with a capital 
of $15,000,000, and a monopoly of the trade with the Dutch East 
Indies. 

13 



194 FREEDOM OF INCORPORATION 

new conditions of society. If these did not first 
appear on American soil, they were certainly viewed 
there with the least prejudice and appreciated with 
the least difficulty. Whatever action they called for 
had to encounter but slight opposition from tradi- 
tions or received opinion, and almost none from 
vested interests. 

We naturally expect the movements of a new 
social force to find expression in law first in new 
governments. We now look to Australia for experi- 
ments in legislation. A hundred years ago, the 
world looked to the United States. 

The first general incorporation law of any kind 
which I have been able to discover was one enacted 
by New York, in 1784, to authorize the formation 
of ecclesiastical societies for the support of public 
worship in some particular church.^ Pennsylvania, 
in 1 791, adopted a similar measure, and extended 
the same privileges to associations for literary and 
charitable purposes. The articles of agreement by 
which the corporation was to be constituted were to 
be submitted to the Attorney-General for examina- 
tion, and if he was of opinion that they conformed 
to the statute, he was to certify this to the Supreme 
Court. A like certificate of approval from the Court 
was also required, and if obtained, the record of the 
papers made the associates a corporation. 2 In 1796, 
another law of New York allowed any twenty persons 
who desired to establish a public library, and would 

1 The Revised Statutes of New York, iii. 292, give this as re- 
enacted and enlarged in 18 13. 

2 Case of St. Mary's Church, 7 Sergeant & Ravrle's Reports, 528. 



FREEDOM OF INCORPORATION 195 

contribute not less than forty pounds for that pur- 
pose, to become a corporation upon simply filing 
their agreement for record.^ Vermont, the next 
year, declared the inhabitants of all towns, school 
districts, parishes, and religious societies formed 
for public worship, to be corporations, without any 
further act on their part.^ 

No harm having been found to result from legis- 
lation of this character, New York took the bolder 
step, in 181 1, of allowing any persons to incorpo- 
rate themselves, by filing the proper papers for 
record, who desired to contribute capital for carry- 
ing on the manufacture of woollen, cotton, or linen 
goods, glass, or a few other specified commodities, 
or engaging in ironmongery.^ This policy was 
soon extended to other branches of industry from 
year to year, and was followed before 1850 by most 
of the other States. In an early Act of this de- 
scription, passed by Vermont, it is worth remark 
that among the few occupations embraced within 
its terms was the construction of water- works, ^ not 
improbably in consequence of the opinion expressed 
in Smith's "Wealth of Nations," which has been 
already quoted. 

The first extension of this principle to banking 
institutions was in Michigan, in 1837. The result 
was disastrous. Of forty banks organized under 
that statute, thirty-six failed within the next two 

1 New York Revised Statutes, iii. 288. 

2 Slade's "Compilation of the Laws of Vermont," 156, chap. 14. 

3 New York Revised Statutes, iii. 310. 

* Revised Statutes of Vermont, ed. of 1840. 



196 FREEDOM OF INCORPORATION 

years. A similar lesson was taught by experience 
in other States. 

Gradually it has come to be the general American 
policy not, as at first, to enumerate certain classes 
of objects for which the privilege of private incor- 
poration is offered, but to throw it, with certain 
specified exceptions, open to those proposing to 
associate for any kind of business. Among these 
exceptions, banking, insurance, and all undertakings 
involving the exercise of the right of eminent 
domain are commonly included ; but provision is 
then made for these by separate laws of a general 
character, in which special safeguards are set up for 
public protection. 

There are also limitations which may be regarded 
as implied in the nature of things. Thus a power to 
incorporate for any lawful purpose ought not to be 
construed as including authority to pursue that pur- 
pose by extraordinary means, not open to the ordi- 
nary citizen, as an individual. 

The ordinary objects of an association for the 
establishment of a college of learning, for instance, 
can be accomplished by the provision of proper 
instruction and suitable buildings and apparatus. It 
is not one of its necessary incidents that it should 
have power to grant degrees in arts or science, and 
thus confer upon their recipients a certain recognized 
staUis in the republic of letters. The academic 
degree did not come into existence until the thir- 
teenth century. There had been great schools of 
learning in the ancient world, numbering thousands 
of students, and with professorships regulated and 



FREEDOM OF INCORPORATION 197 

supported by law; but those who might successfully 
pursue their full courses of instruction received 
nothing but a simple certificate of that fact. The 
same thing was true of the colleges and universities 
that sprang up upon the revival of learning. The 
first collegiate degrees of the character with which 
we are now familiar were conferred by the Univer- 
sity of Paris, by authority of a papal bull of Nicho- 
las I. Their original purport and object was to grant 
the recipient the right to teach in any part of the 
world. The language of the modern diploma is the 
same. The University of Paris conferred the privi- 
lege by an authority then recognized as ecumenical. 
The modern college or university confers it by per- 
mission of a more limited authority, that of the par- 
ticular State in which it is incorporated; but this 
permission must be distinctly expressed by the local 
sovereign. The University of Durham was incor- 
porated by Act of Parliament, and opened for students 
in 1833, but it was not until 1837 ^^at it obtained 
by royal charter the right to grant degrees. A 
general law authorizing the incorporation of literary 
institutions does not, therefore, authorize the incor- 
poration of one with power to grant academic degrees.-^ 
The persons associating under such a law could not, 
as individuals, assume such a function, and their 
corporate character only enables them to do as a 
corporation what they could before have done with- 
out it, as private citizens. 

It is to be regretted that in some of the States 
these principles have not always been enforced, and 

1 Re Medical College, 3 Wharton's Reports, 455. 



198 FREEDOM OF INCORPORATION 

that American diplomas from speculative colleges, 
formed under general laws, have been sometimes 
made the subject of bargain and sale, almost with- 
out disguise. Such degrees are simply counterfeits 
of the trade-mark of learning. 

As a guard against such abuses of the law, it is 
provided in several States that those desiring to 
incorporate themselves for any purpose must submit 
their articles of association to some judicial author- 
ity for inspection and approval. Where the approval 
extends no farther than to the determination that the 
papers are properly drawn and the case one within 
the terms of the statute, this cannot be deemed a 
delegation of legislative power; but it may be other- 
wise where the approval is a matter of discretion, 
based on questions of policy or expediency.^ 

A provision of this character formed part of what 
is believed to be the first of the long line of Ameri- 
can statutes throwing open incorporation for munici- 
pal purposes to all clusters of population on equal 
terms. This was the Pennsylvania law of 1834, 
giving to the courts of quarter sessions, with the 
concurrence of the grand jury of the county, power 
to incorporate any town or village into the form of 
a borough.^ 

The scheme of government and the extent as well 
as distribution of corporate powers are generally 

1 State V. Armstrong, 3 Sneed's Reports, 634; Mayor of Morris- 
town V. Shelton, i Head's Reports, 24. 

2 The opinion of the grand jury is not considered as conclusive as 
to the expediency of incorporation. In re Incorporation of Village 
of Edgewood, 130 Pennsylvania State Reports, 348 ; 18 Atlantic 
Reporter, 641. 



FREEDOM OF INCORPORATION 199 

prescribed by the statute, and vary according to the 
number of the population to be affected. In two 
States, cities having over one hundred thousand 
inhabitants may, under certain restrictions, frame 
charters for themselves. ^ 

Congress has imposed the policy, as respects both 
public and private corporations, of general incorpo- 
ration laws on all the Territories. ^ It has also fol- 
lowed it itself in establishing our present system of 
national banks, and in giving a national character to 
associations of workingmen having branches in more 
than one of the States or Territories.^ Its field of 
legislation is so limited that, except in the instances 
which have been mentioned, it has seldom had occa- 
sion to exercise the power of incorporation for busi- 
ness purposes, but when this has been done, it has 
taken the form of a special charter. 

More than fifty years ago the principle of general 
legislation, in regard to corporate organization, 
began to pass into our system of constitutional 
law. 

Not inappropriately, the first manifestation of 
this tendency was in a State whose institutions were 
founded on the civil law. Article 123 of the Consti- 
tution of Louisiana, which was adopted in 1845 to 
replace that framed in 18 12, when the State was 
admitted to the Union, reads thus: — 

1 Beach on " Public Corporations," i. § 42. 

2 U. S. Revised Statutes, § 1889; U. S. Statutes at Large, vol. 24, 
p. 170. 

3 U. S. Statutes at Large, vol. 24, p. 86. 



200 FREEDOM OF INCORPORATION 

" Corporations shall not be created in this State by 
special laws, except for political or municipal pur- 
poses, but the legislature shall provide, by general 
laws, for the organization of all other corporations, 
except corporations with banking or discounting 
privileges, the creation of which is prohibited."^ 

Iowa went a step farther in her Constitution of 
1846, and laid down the same rule for both public 
and private corporations.^ The Constitutions of 
New York, in 1846, Wisconsin, in 1848, and Ohio 
and Indiana, in 185 1, contained provisions on this 
subject more or less comprehensive, and special 
incorporation laws have since been prohibited in a 
large number of the other States. 

The progress of British legislation in this direc- 
tion may be said to date from the beginning of the 
''Victorian age." 

A foundation had been laid, in 1825 and 1827, by 
Acts of Parliament conceding to workingmen the 
right of association in trades-unions, authorizing 
free banking on a basis of full partnership liability,^ 
and repealing the Bubble Act of the preceding 
century. 

The latter measures were due to the increasing 
pressure of capital seeking investment on the joint- 
stock principle,^ and to the evils which had resulted 
from exclusive banking privileges, particularly in 
Ireland. During the period between 1783 and 

1 I Poole's "Charters and Constitutions," 721. 

2 Ibid. 546. 3 Act of 7 Geo. IV., cliap. 46. 

* In 1825, ;[f 18,000,000 was paid in by shareholders in various Eng- 
lish companies. Annual Register for 1825, Public Doc. 42. 



FREEDOM OF INCORPORATION 201 

1825, when the Bank of Ireland enjoyed a complete 
monopoly, it opened no branches. The consequence 
was that private concerns received the country 
deposits, and speculated with them, involving losses 
in one year estimated at ;!^20, 000, 000. ^ The Irish 
Parliament had endeavored to encourage legitimate 
enterprises on the principle of limited liability, in 
1782, by adopting the device of the societe anonyme 
in its original form ; but it was not to be allowed to 
interfere with the Bank of Ireland. Any number of 
persons might enter into a partnership under the 
name of one of them "and company," for any kind 
of lawful business, except banking, to endure for 
not over fourteen years, and with a capital of not 
less than ^50,000. The partner whose name 
was thus used was to have the sole conduct of 
the business and be liable for all the partnership 
debts. The others, who were styled "anonimous 
partners," risked only what capital they originally 
agreed to put in. The partnership articles were to 
be recorded in a public registry at Dublin ; capital 
was represented by transferable shares ; and the firm 
was not dissolved by the death of any of the mem- 
bers. ^ England did not care to follow this experi- 
ment in legislation, though it was preserved in force 
after the union by a special clause in the Joint Stock 
Companies Registration Act of 1844. 

The causes leading to the adoption of that measure 
were briefly these. Many associations of individuals 
under a company name, which the ordinary people 

1 Daly's " Glimpses of Irish Industries," 66. 

2 Act of 21 and 22 Geo. III.; 12 Irish Statutes at Large, 347. 



202 FREEDOM OF INCORPORATION 

took to signify the possession of a charter, were trad- 
ing under a fictitious credit thus acquired. Of the 
few full corporations which were in business under 
royal charters, the shareholders in some were liable 
individually to an amount proportioned to their 
stock, and those in others were under no liability 
except that of paying in the amount of their actual 
subscriptions.^ Other companies which were merely 
great partnerships (including most of the larger and 
more solid concerns) had been successful in procur- 
ing a special Act of Parliament, based upon their 
organization agreement or " deed of settlement," 
which, without incorporating them, authorized suits 
to be brought by or against the company in the 
name of one of their number.^ The Liverpool and 
London Life and Fire Insurance Company was one 
of these, and from time to time has secured succes- 
sive special Acts of Parliament in aid of its growing 
business, each of which, however, contains a special 
proviso that it shall not be deemed an act of incor- 
poration.^ Important banking institutions existed 
by a similar tenure, and those whose seat of opera- 
tion was more than sixty-five miles from London were 
issuing their notes for general circulation. Within 
that limit the Bank of England had obtained a mo- 
nopoly. Two of the country banks, the Agricultural 
Bank of Ireland and the Northern and Central 
Bank in Manchester, were forced to go into liqui- 

1 Smith's " Mercantile Law," 41. 

2 Ibid., chap. i. sec. 7. 

^ Liverpool Insurance Co. v. Massachusetts, 10 Wallace's Re- 
ports, 569. 



FREEDOM OF INCORPORATION 203 

dation at the outset of the commercial panic of 1836, 
Many others of the large companies formed on the 
joint-stock principle were shaken, and some fell. 
The British public then began to see that existing 
laws made no adequate provision for public infor- 
mation as to the financial condition of any of these 
associations. A demand that they should be in- 
vested with definite franchises which the State could 
control, and for the proper exercise of which they 
could be held fully responsible, became general in 
the community. It was a demand for the protection 
of creditors and investors against speculative and un- 
substantial organizations, rather than one for more 
facilities for corporate organization.^ 

An Act passed in 1838 gave some slight relief,^ 
but the first general incorporation law was not 
enacted until 1844. This (the Joint Stock Com- 
panies Registration Act) provides that no insurance 
company, and no partnership for any kind of busi- 
ness (except the construction of such works as would 
require a special grant of parliamentary authority), 
with a capital to be divided into transferable shares, 
or with more than twenty-five members, shall there- 
after be formed until articles of association, duly 
executed, setting forth the proposed name, business, 
capital, stock subscriptions, term of duration, and 
other particulars which are specified, have been 

1 Bunyon on Life Assurance, 121. 

2 This (amending an Act of 4 & 5 "William IV., chapter 69) left 
the members of joint-stock companies exempt from any individual 
liability, and made them quasi-corporations. Harrison v. Timmins, 
4 Meeson & Welsby's Reports, 510. 



204 FREEDOM OF INCORPORATION 

put on record in a government registry office. It is 
then enacted that upon obtaining a certificate from 
the "Registrar of Joint Stock Companies" that a 
proper registration has been made, the shareholders 
and their successors " shall be and are hereby incor- 
porated as from the date of such certificate by the 
name of the company as set forth in the deed of 
settlement, and for the purpose of carrying on the 
trade or business for which the company was formed, 
but only according to the provisions of this Act, and 
of such deed as aforesaid, and for the purpose of 
suing and being sued, and of taking and enjoying 
the property and eff"ects of the said company ; ... 
and thereupon it shall be lawful for the said com- 
pany " to do any act ordinarily incident to the busi- 
ness of a corporation, except that no lands could be 
acquired without the license of a committee of the 
Privy Council, except as a site for its place of busi- 
ness. Each shareholder, however, was made liable 
as fully as an ordinary partner to judgment creditors 
who could not collect their demand from the assets of 
the company. Ample provision was made for afford- 
ing both shareholders and the public full information, 
from time to time, of the company's affairs. 

This statute has not been construed by the English 
courts as giving the organizations which are effected 
under it the character of a full corporation ; but it is 
difficult to see what of its essential qualities they lack. 
Subsequent Acts of Parliament have modified the 
system thus inaugurated, by allowing also the forma- 
tion of limited liability companies, the members of 
which risk nothing but the contribution to the capital 



FREEDOM OF INCORPORATION 205 

which they originally agree to make in payment of 
their shares. Such a company must add the word 
" Limited " to its name. This provision dates from 
1856; and in 1862 the legislation on the whole subject 
was revised in the " Companies Act " of that year, 
and the organization of unsubstantial enterprises 
rendered considerably more easy. 

There had been a rush to take advantage of the 
Act of 1844, and a commercial panic followed in a 
year or two. Similar results followed the Act of 
1862. The promoters of a new company, by gifts of 
shares, hired a few men of means and prominence 
to become directors; the arrangement being often 
made through some mutual acquaintance, who was 
also well paid for every name he brought in. 
Foreigners, whose own country offered no such 
opportunities, became promoters and purchasers. 
The stock of the " London Bank of Scotland, 
Limited," was divided into 10,000 shares, and a 
majority of them were held during one fortnight of 
its early history by six Greeks, all men of small 
means, who were brought into it because three 
leading merchants of their race were to be on the 
board of directors.^ 

Changes in detail have since been made in the Eng- 
lish statutes, but in substance they remain the same. 

A general banking law, with particular regulations 
for the conduct of that business and a prohibition 
against the issue of circulating notes, was passed in 
1858. 

The English have been unwilling to grant in terms 

1 Xenos' Depredations, 263, 316, 335. 



2o6 FREEDOM OF INCORPORATION 

the privilege of complete incorporation, as of right, 
to all who desire it, because in their law it has been 
regarded as essential incidents of a full corporation 
first, that its personality is wholly distinct from that 
of its members ; second, that therefore they cannot, 
in fairness, be made liable for its obligations individ- 
ually ; and third, that it can exercise every power not 
prohibited by its charter. Coke had laid the founda- 
tions of this doctrine in discussing the attributes of 
an incorporated hospital, and it has been silently 
extended in course of time to corporations of every 
class,^ notwithstanding the fact that a charitable insti- 
tution is siii generis, and is, in effect, only the formal 
expression of an equitable trust.^ 

A striking instance of its practical effects may be 
found in the history of the British Linen Company. It 
was chartered in 1746 for the manufacture of linen, 
the stockholders to be under no individual liability 
for its debts. It soon added banking to its manufactur- 
ing business. The latter was afterwards abandoned, 
but the corporation still exists in active operation as 
a bank. 

The American courts, untrammelled by English 
precedent, have proceeded on the theory that corpo- 
rations have no powers which have not been granted 

1 Case of Sutton's Hospital, iv. Coke's Reports, 23, 30, b; So- 
ciety of Practical Knowledge v. Abbott, 2 Beavan's Reports, 559; 
Pollock's Principles of Contract, 119, and note D, in appendix. 

2 Savigny would limit the use of the term " corporation " so as 
to make it exclude charitable foundations altogether. To English 
and American minds there is no difficulty in regarding a charitable 
corporation as a trustee of its funds for the benefit of the charitable 
objects prescribed. 



FREEDOM OF INCORPORATION 207 

to them either expressly or by reasonable implica- 
tion ; that it does not deprive them of their proper 
character to make it part of their original constitu- 
tion that their creditors may resort, to any extent 
which the law may prescribe, to the members indi- 
vidually; and that in enforcing the duty of the cor- 
poration to the public, and sometimes in determining 
the absolute rights of its members, as such, between 
themselves, its artificial form can be disregarded, and 
it can be held bound by the acts of all its members.-^ 
This difference between English and American law 
serves in great measure to account for the freer hand 
with which corporate franchises have been offered 
here to all who wish them, on equal terms. 

Turning now to the modern development of cor- 
porations in Europe generally, we find that early in 
the century the societe anonyme in its later form, as 
remoulded in the Code Napoleon, following the French 
arms, spread with the principles of that code over 
Southern Europe. 

Belgium anticipated France by repealing the re- 
quirement of official authorization. This was effected 
there, with the aid of subsequent judicial inter- 
pretation, by the revolutionary decree of October 16, 
1830, declaring that " impediments to the liberty of 
association are infractions of individual and political 
liberty." 2 

A year later Brazil adopted the same policy, and 

1 State V. Standard Oil Company, 49 Ohio State Reports, 137 ; 
30 Northeastern Reporter, 279 ; Woodbridge v. Pratt & Whitney Co., 
69 Conn. Reports, 304. 

2 Rogron, Code de Commerce explique, 1 5. 



2o8 FREEDOM OF INCORPORATION 

although its abuse by those engaging in the banking 
business caused a return to the old order of things 
a few years later, in 1882 absolute freedom of incor- 
poration was again established, except for a few 
specified objects. ^ 

Germany followed the example of France in 1870. 
It was to arm herself against her with her own 
weapons, for the struggle upon which they were 
about to enter. Capital was to be mobilized as well 
as troops. The law passed in June of that year by 
the North German Confederation, soon to become 
the new Empire, reproduced the main features of the 
French law of 1867, though the familiar designation, 
elsewhere generally adopted, of nameless society 
{^societe anoiiyme) , was replaced by that of shares- 
society {Aktiengesellschaft). The speculative fever 
which accompanied and followed the war, found in 
this measure an effective support. Companies were 
organized on insufficient capital, a considerable por- 
tion of which were soon forced into liquidation.^ This 
led, in 1884, to another law of the empire, adding 
new safeguards, particularly against the rapacity and 
frauds of promoters. The interests of minority stock- 
holders were also given further protection, and reg- 
ulations prescribed for partnerships en commandite 
{Kommanditgesellschaften auf Aktien^, under which 
the partners' shares were made transferable. The 
benefits of free incorporation on favorable terms were 
extended to registered co-operative and mutual aid 

1 Annuaire de Legislation ^tranglre, for 1882, pp. 1080, 1082. 

2 Annuaire de Legislation Mtrang^re, for 1885, p. 98 ; " Handwdrter- 
buch der Staatswissenschaften," i. Aktiengesellschaften, iii. 



FREEDOM OF INCORPORATION 209 

societies {Genossenschaftcii), in 1889, and three 
years later to all who desired to engage in business 
of any kind, on a footing of limited liability. The 
shares-society was calculated, mainly, for large under- 
takings. Its stock was ordinarily distributed among 
numerous holders, and its business was often of a 
kind in which the general interest of the community 
might be concerned. The law had therefore required 
a certain publicity to be given to their affairs, which 
was needless and annoying in case of a small business 
in the hands of a few men. These could act more 
effectually if the corporate form were reduced as 
nearly as might be to the likeness of a partnership. 
The law of 1892 did this by allowing the formation of 
limited partnerships, with transferable shares (6^^5^//- 
schaften mit beschrdnktev Haftimg). They may have 
an ordinary firm name, made up of those of the in- 
dividual members, or one descriptive of the business, 
but in either case the words above quoted to indi- 
cate limited liability must be added to it. Such a 
body is not formally declared to be an artificial person, 
but it has all the essential attributes of one. (Art. 13.) 
Each partner at the outset holds one share and one 
only. Its amount is that of his agreed contribution 
to the capital, so that the shares may differ widely in 
their par value. Subsequently they may be divided, 
but only by a general vote of all. 

The result of the law of 1892 has been greatly to re- 
duce the number of the shares-societies, capitaHsts pre- 
ferring the new form of association because of the 
greater privacy with which its affairs can be conducted,^ 

1 Annuaire de Legislation Etrangire, 21st year, 154. 
14 



2IO FREEDOM OF INCORPORATION 

Hungary adopted the system of free incorporation 
for ordinary business purposes in 1875, Italy in 1882, 
and Spain in 1885. The Swiss Confederation incor- 
porated it into their Code of Obhgations (Art. 612, 
et seqS) in 1883, excluding from its benefits banks 
and insurance companies. It may indeed be said to 
be the general rule of Europe, Austria and Russia 
being the only considerable powers which have not 
given it their adhesion.^ 

Canada still holds to the principle of governmental 
authorization in each case, but by the " Companies 
Act" of 1886 allows the Governor in Council to 
grant charters, on written application, for any busi- 
ness purpose except those of railroads, banking, and 
insurance. Hawaii has a law quite similar.^ 

So far as concerns municipal corporations, the 
world at large has not been ready to follow the 
American lead.^ 

Perhaps no country is so situated politically that it 
could follow it with safety to its institutions. If there 
be one, it is Great Britain, but she is held back, both 
by what might be its effects upon her system of par- 
liamentary representation, and by what they would 

1 Annuaire de Legislation Etrangire, 14th year, 99. 

2 Civil Code of 1897, chap. 127. 

3 The Prussian laws for the government of country communities 
(the Kreiso7-dnung of 1872, and Landgemeineordmcng of 1891), to a 
certain extent look in the direction of free incorporation. They con- 
template the formation, in certain cases, of new communities, or com- 
munal unions by grouping together several previously existing, by the 
action of the local and provincial authorities ; but this is only justi- 
fied when the united communities were separately too weak to support 
the necessary public burdens. 



FREEDOM OF INCORPORATION 211 

be as to the inhabitants of the particular district 
respecting which incorporation might be obtained. 
While since 1835 she has had in operation a uniform 
scheme of municipal government, municipal incor- 
poration is still by special charter in each case. The 
Reform bill of 1832 created a number of new bor- 
oughs for the purpose of parliamentary elections, 
without making them self-governing municipalities. 
Manchester did not secure a charter until 1838, 
though she then had a quarter of a million inhabi- 
tants. Newcastle until nearly the same time had no 
other than one early granted by the bishop of Dur- 
ham. The Municipal Corporations (Consolidation) 
Act of 1882 went no further than to allow the inhabi- 
tants of any town or district to petition the queen for 
incorporation as a borough, and to authorize such a 
grant to be made upon a favorable report from a 
committee of the Privy Council. In 1888, however, 
the " Local Government Act " took a half way step 
towards the adoption of the American system of vol- 
untary incorporation, by providing that cities and 
towns having not less than fifty thousand inhabitants 
shall ipso facto be distinct counties for administrative 
purposes, the duties properly pertaining to County 
Councils being performed, in every such case, by the 
municipal council. 

Differences of legal theory as to the inherent attri- 
butes of a municipality have also had great weight. 

In England the view taken by the courts as to the 
extent of corporate powers, which has already been 
noticed, extends to municipal corporations, and in the 
absence of prohibitions, they occupy much the posi- 



212 FREEDOM OF INCORPORATION 

tion of a natural person as to the acquisition and 
disposition of property, and can do almost anything 
which is not a direct invasion of private right.^ The 
same doctrine is practically applied to them in Europe 
generally, and we need not be surprised that, wher- 
ever it obtains, they are created only by special 
charter in each particular case, under the conviction 
that there is too much danger in their possibilities to 
make it safe to do otherwise. 

The rule universally prevailing in the United 
States that a municipal corporation, in addition to 
the powers with which it is specially invested by the 
statute law, has by implication only such as are 
essential to the proper exercise of those, or necessary 
to attain the declared objects of incorporation, has 
led us naturally to a different result. 

European history has also taught the lesson that 
municipal corporations are apt to come under the 
influence of particular classes of their inhabitants, 
organized for purposes of mutual aid and protection ; 
and the extent of their powers under European law 
renders any perversion of them for class purposes 
doubly pernicious. We have seen how this was true 
of the mediaeval trade guild. In recent times, trades- 
unions and socialistic organizations have made their 
power felt in a similar way, but not always with the 
same results. They naturally seek to promote their 
own views and objects by direct means, wherever the 
road is plain. Thus, for instance, in London, the 
trades-unions have made it a general feature of all 
city contracts for the erection of public buildings that 
1 Kyd on Corporations, i. io8, 182. 



FREEDOM OF INCORPORATION 213 

the contractor shall pay "the rates of wages mutually 
agreed upon by the Central Association of Master 
Builders of London, and the London Building Trade 
Federation." But instead of inclining steadily towards 
paternalism, it is often found that a city controlled 
by labor organizations is, in certain directions, held 
back from it. Appropriations for the relief of the 
poor, sick, or unemployed are discouraged, from the 
feeling that they should be left to insure themselves 
against want by membership in some appropriate 
mutual benefit society, under the principle that the 
sale of labor must be wholly controlled by organized 
labor. Such has been the recent municipal history 
of socialism in France and Belgium.^ 

Advancing standards of human comfort and a 
growing sentiment of municipal solidarity are, on the 
other hand, impelling cities everywhere to undertake 
new functions for the good of the citizen. They 
demand the right to pull down unsanitary tenement 
houses, and replace them by pubHc ones ; to estab- 
lish savings banks, and pawn shops; to engage in 
great public works, even to the extent of reversing 
their natural geographical environment, as in the case 
of the Manchester ship canal ; to erect cold storage 
warehouses for the convenience of importers ; ^ to 
furnish power to manufacturers; to become manu- 
facturers themselves. 

The European city possesses far greater powers 
than the American, but it is also subject to a far 

1 Annals of the American Academy of Political and Social Science, 
viii. 208, 217. 

2 Manchester has done this also, on a large scale. 



214 FREEDOM OF INCORPOEATION 

more stringent supervision by the State. The ad- 
ministrative side of government is, in theory at least, 
httle regarded by us. As to municipal affairs, it is 
all important in the rest of the world. This, co- 
operating with economic conditions incident to the 
historical development of the nation, has led almost 
everywhere in Europe to the regulation of municipal 
government by general laws, reserving to the State 
large powers of intervention, to an extent hardly 
equalled yet in the United States. Under the munici- 
pal code of Austria, for instance, the government, in 
1895, upon the election of a mayor of Vienna who 
was unsatisfactory to the emperor, dissolved the 
city council and assumed the administration of all 
the affairs of the municipality by an imperial 
commissioner. 

The drift of workingmen's associations and trades- 
unions, both in Europe and in America, is towards 
the advocacy of larger home rule for the municipality, 
and less State interference with its concerns. The 
ordinary wage-earner comes closer to the city council 
than to the State legislature. Many of the " labor " 
leaders favor a transfer to the municipal corporations 
of a large share of the powers of government, even as 
to affairs of general concern to the nation. 

The commune movement which succeeded the fall 
of Louis Napoleon, had for its avowed object the 
government of the French people through the local 
communes. The national government was to have as 
few powers as possible. France was to be a mere 
confederacy of 36,000 communes. 

It is worth remark that in Milton's " Ready and 



FREEDOM OF INCORPORATION 215 

Easy Way to establish a Free Commonwealth," he 
sketched in outlines a similar plan for England. 
Every county, he says, should be made — 

" a kind of subordinate commonalty or commonwealth, and 
one chief town or more, according as the shire is in circuit, 
made cities, if they be not so called already, where the 
nobility and chief gentry, from a proportionable compass of 
territory annexed to each city, may build houses or palaces 
befitting their quality, may bear part in the government, 
make their own judicial laws, or use these that are, and exe- 
cute them by their own elected judicatures and judges 
without appeal, in all things of civil government between 
man and man ; so they shall have justice in their own 
hands, law executed fully and finally in their own counties 
and precincts, long wished and spoken of, but never yet 
obtained ; they shall have none then to blame but them- 
selves, if it be not well administered, and fewer laws to ex- 
pect or fear from the supreme authority ; or, to those that 
shall be made of any great concernment to public liberty, 
they may, without much trouble in these commonalties, or 
in more general assemblies called to their cities from the 
whole territory on such occasion, declare and publish their 
assent or dissent by deputies, within a time limited, sent to 
the grand council ; yet so as this their judgment declared, 
shall submit to the greater number of other counties or 
commonalties, and not avail them to any exemption of 
themselves, or refusal of agreement with the rest, as it may 
in any of the United Provinces, being sovereign within it- 
self, ofttimes to the great disadvantage of that union. . . . 
Nothing can be more essential to the freedom of a people, 
than to have the administration of justice, and all public 
ornaments, in their own election and within their own 



2i6 FREEDOM OF INCORPORATION 

bounds, without long travelling or depending upon remote 
places to obtain their right, or any civil accomplishment, so 
it be not supreme, but subordinate to the general power and 
union of the whole republic ; in which happy firmness, as in 
the particular above mentioned, we shall also far exceed the 
United Provinces, by having, not as they, to the retarding 
and distracting ofttimes of their counsels or urgentest 
occasions, many sovereignties united in one commonwealth, 
but many commonwealths under one united and entrusted 
sovereignty." ^ 

Since freedom of municipal incorporation exists 
only in the United States, and even there does not 
generally prevail, we should not expect and we do 
not find that it has been attended with any marked 
political or economical consequences. It naturally 
coalesces with our other institutions, and simply re- 
moves opportunities for favoritism and cheapens 
expenses of administration. 

As to freedom of incorporation for private pur- 
poses, the case is different. This has secured a place 
among the institutions of the civilized world, and its 
effects are far-reaching and almost revolutionary. 

How is it, we must first ask, that it has so suddenly 
attained this position? What are the causes that in 
half a century served to reverse a rule of legislation 
that had been everywhere accepted since the fall of 
the Roman empire? 

First among these I should name the improvement 
in the arts, by which machinery has been so largely 
substituted for human hands. Household manufac- 
1 Milton's Prose Works, Boston ed. of 1826, ii. 329, 330. 



FREEDOM OF INCORPORATION 217 

tures have thus become unimportant. Individual 
skill and dexterity are little considered in such manual 
labor as is still required. All important products, 
except crops from land (and those also to a steadily 
increasing extent), come from a combination in a 
single workshop of laborers with capital in the form 
of costly mechanism moved by steam or electricity. 
It is also true that the largest workshops prove the 
most economical. Nor can the small producer con- 
tend with the large producer on equal terms in 
disposing of his goods. Steam and electric loco- 
motion, aided by the telegraph and telephone, have 
annihilated the local market. Every manufacturer 
must compete with those of the whole country, or 
else combine with those of the whole country to an 
extent sufficient to prevent competition. Such com- 
binations are merciless. Their aggregated resources 
allow them to establish prices below the cost of pro- 
duction long enough to ruin any small concerns that 
have not joined them. 
f GxQ^2,\. undertakings are now almost the only suc- 
cessful undertakings : certainly the only ones which 
offer large profits to many people. Mere partnerships 
are no longer adequate to the necessities of the busi- 
ness world. They are not strong enough for the 
strain. In amount of capital, in term of duration, 
in unity of management even, they are no match for 
the corporation. Partners may differ, and the house 
divided against itself will fall. Stockholders in corpo- 
rations may differ, but the iron rule of the majority 
guaranties consistent and harmonious action, when a 
board of management is once elected. This board, 



2i8 FREEDOM OF INCORPORATION 

too, while more numerous than partners in an 
ordinary firm, unhke them acts as one man and 
by one man. 

It was the contention of the old school of political 
economists, the school of which J. R. M'CuUoch was 
one of the last leaders,^ that directors of trading com- 
panies would not and could not give that personal 
attention to the business, which was necessary to 
ensure success, and so that trading partnerships, in 
which every member took an active part in the 
management, were a far safer mode of association. 
It is precisely because every partner in an ordinary 
mercantile firm is expected to take an active part in 
its affairs that the partnership is inferior in executive 
power to the corporation of equal capital. That 
principle of absolutism around which we have thrown 
so many checks in political governments, by the 
usages of modern business is recognized there as in- 
evitable and controlling. Unity of policy, instant 
decision, immediate action, strict subordination, — 
without these the war of competition under present 
conditions cannot be waged with success. It must 
be regulated by military maxims, and with but one 
general in command. 

Add to this the protection of limited liability which 
the corporation offers, and it is no wonder that noth- 
ing else will satisfy the modern capitalist. He is not 
ready to stake his whole fortune in the success of a 
particular enterprise. He prefers to scatter his in- 
vestments, and risk by each only what he especially 

1 See his article on Companies in tlie " Encyclopedia Britannica," 
8th edition. 



FREEDOM OF INCORPORATION 219 

devotes to it. He cannot give his personal attention 
to the management of each. He may not care to 
give it to that of any of them. The one man, then, 
who is to be directly in control of every large busi- 
ness is not often its owner. There are many owners ; 
and not infrequently no one of them would be com- 
petent for such a position. By assuming the form 
of a corporation they can secure the services of one 
who is, without incurring the ordinary liability of an 
employer for the acts of his agent. The employer 
may lose his whole fortune by some injury which his 
agent carelessly inflicts upon another. The share- 
holder in an ordinary corporation cannot lose any- 
thing beyond his stock by such misconduct on the 
part of the president. He can also keep a certain 
watch upon him through his representatives, the 
board of directors. It is true that this is less real in 
practice than it seems in theory. Whatever powers 
may be placed in boards of directors, they cannot 
be always in session, and between their meetings 
some one will must be in control, and in emergencies 
in what is practically absolute control. But the next 
meeting of the directors or of the executive com- 
mittee, and the report to be made to it, is always in 
prospect. A great capital is seldom sunk by any 
single act, or temporary course of policy. A vigi- 
lant stockholder, with a considerable interest, can 
always keep himself fairly well informed, if he asks 
questions enough of those who are acting for him, 
and looks with care at the books which he is entitled 
to inspect. 

Whatever is the " law merchant " is not long in 



2 20 FREEDOM OF INCORPORATION 

becoming the law of the land. As soon as business 
men came to feel that their interests were safest in 
charge of a corporation, they began to demand that 
incorporation should be made as easy as the old forms 
of voluntary association. The rapidity of motion 
of modern trade is such that ordinary enterprises 
cannot safely be delayed by applications for special 
charters. They must be pressed forward with the 
despatch of the telegraph and the telephone. There 
must be the same liberty to form a corporation in a 
day that there is to form a partnership in a day, and 
the same freedom from outside interference in any of 
the initial steps. 

The way to this was paved by what Lieber, writing 
in 1853, described as the " all-pervading associative 
spirit " so characteristic of English speaking peoples.^ 
It long since ceased to be distinctively theirs. The 
same forces which led England to repeal her laws 
against combinations of workingmen in 1827, led 
France and Germany to repeal theirs, forty years 
later. The right of temporary association has gained 
in several countries of Europe, and even in one of the 
East,^ a constitutional sanction. 

The demand for this came mainly from the laboring 
classes, but the associative spirit had taken posses- 
sion of the whole community. The legal expression 
of it was the result of the same social conditions 
already mentioned. The workmen found it necessary 
to unite in self-defence. They must accumulate a 
capital to support their claims to reasonable wages 

1 Lieber's "Civil Liberty," 129. 

2 Japan, Constitution of 1889, art. xxix. 



FREEDOM OF INCORPORATION 221 

and proper treatment. The employer did not oppose 
them in this. He could not with any degree of con- 
sistency, or any prospect of success. The modern 
trades-unions and fraternal societies are as much the 
fruit of steam and electricity as the factories where 
their members work. 

Another cause, not less deep-seated, for offering 
corporate privileges to all who wish them, without 
discrimination, is the general acquiescence of our age 
in the doctrine that all men are born free and equal, 
and are entitled to a free and equal government, rest- 
ing on their own consent. General laws further this 
equality, and special laws abridge it. 

So far as concerns private corporations, there is 
also a certain sentimental reason for allowing them to 
be created at will. They serve to prolong, as it were, 
the life of the individual, by linking it with that which 
will not die. 

The founder of an incorporated institution, whether 
it be a charity or a manufacturing company which 
bears his name, and every member of a scientific body 
or social club, has become a part of something that 
will live after him, and through which his memory 
may be perpetuated. Whatever he may contribute 
to the advancement of its interests will go into a com- 
mon stock, in which those who are to take his place 
may share, and to which they may be expected to 
add. The union of those working for a common end 
is rendered doubly effective if, as one drops out, an- 
other enters in unbroken continuity of succession. 



22 2 FREEDOM OF INCORPORATION 

In former times, men were able to perpetuate their 
name by founding a family upon an entailed estate, 
and weaving it into the political constitution of their 
country, so that it partook of the same stability, and 
might endure as long. Now it is the society, the col- 
lege, the church, the library, the factory, the business 
with which they have been connected, or in the use- 
fulness of which they are confident, that they aid to 
a permanent establishment, and through whose contin- 
uance after they are gone they feel that they can best 
impress their ideas and their influence upon posterity. 
It is thus that we have found a way to prolong our 
passing lives, one might almost say forever. By such 
organizations, what is best of the activity and aspira- 
tion of one generation can be unceasingly transfused 
into the next, to gather new strength in the general 
upward progress of the race, and advance continually 
towards a fuller attainment of whatever objects they 
may be formed to promote. 

As man learns better what is his relation to the 
world about him; as he understands more clearly 
how weak he is, standing alone; as he looks back 
to his origin and forward to his destiny, he feels 
more and more strongly the necessity of close human 
association for common ends. 

The record written in the rocks and buried in 
caves, that modern science has brought to light, of 
the law of evolution, if one were to think only of the 
history of individuals, would make us tremble for 
the future of mankind. The lower animals, still true 
to the ancient rules of natural selection and the 
struggle for existence, are maintaining in their prog- 



FREEDOM OF INCORPORATION 223 

eny the best characteristics of their kind. Man, 
who raises to maturity the puny and feeble of his 
offspring, only, perhaps, to perpetuate their weak- 
ness in another generation, seems to transgress in 
this the laws by which his physical being is regu- 
lated in the statutes of the universe. He prolongs 
and reproduces types of constitutions, which in the 
original order of nature would have been early borne 
down and swept away by something stronger. But 
that heaven-born mind that has made man the mas- 
ter of the earth has come to his support, and taught 
him the law of corporate vitality. The sickly child, 
who, in rougher ages, if not exposed to perish in 
infancy, would have fallen early in the struggle for 
existence, may now be tenderly reared to manhood. 
He will not stand alone and unaided in the commu- 
nity. He will be free to bind himself by a voluntary 
tie to stronger men and mingle his best qualities 
with theirs in indissoluble union, each giving some- 
thing to gain more. The races of the civilized world 
number many of feebler form than their barbarian 
ancestors, or the savages of our own day; but by 
associations formed for perpetual succession to pros- 
ecute the same object steadily and always, as one 
man, they have in effect banished death and time 
from the domain of human achievement. 

It is not easy to measure the weight of considera- 
tions like these in determining the course of human 
affairs. They are not the subject of statistics, and 
hardly of reasoning. But it is not always the mo- 
tives that lie on the surface, or that are most com- 
monly stated, which account for human conduct. 



2 24 FREEDOM OF INCORPORATION 

Sentiment has a large place in the development of 
institutions. Its place is all the larger because it 
is something indefinite and intangible, because it 
reaches out farther than thought can go, and be- 
longs to that in our nature which in the life of earth 
is unknowable. It is this which makes it an enduring 
power, " for the things which are seen are temporal ; 
but the things which are not seen are eternal." 

Another ground of the demand for general incor- 
poration laws which requires mention is the growing 
distrust of the people for their legislatures. Experi- 
ence has shown that charters, from whatever author- 
ity they may proceed, go by favor, and quite too 
often to the least worthy. The modern tendency 
to overmuch legislation renders it difficult in the 
rush of business for committees to examine each 
measure that comes before them with the necessary 
care. There is ordinarily no opposition to an appli- 
cation for incorporation, and it is granted in the 
terms asked for, without the scrutiny which would 
attend an active opposition. Safeguards that are 
essential to the public interests are apt to be inserted 
in one charter and omitted from another almost by 
accident. 

These considerations are of special weight in new 
countries, which are looking for a rapid growth in 
wealth and population; but the same causes are at 
work in all. The universal extension of popular 
representation in legislative bodies has brought the 
oldest governments face to face with the spirit of 
innovation and adventure, — the spirit of men who 



FREEDOM OF INCORPORATION 225 

have little to lose, and are risking the property and 
security of others rather than their own. 

The immediate results of the adoption of general 
incorporation laws have been everywhere nearly 
the same. At first, it has led to many hasty and 
ill-considered ventures, which were a mere waste 
of the capital invested, and also brought some com- 
panies into existence which imposed upon the public 
by the issue of fictitious or unsound securities. A 
reaction in legislation has followed. New safeguards 
have been created against the abuse of corporate 
franchises. These have soon been found to bear too 
hardly on legitimate enterprises, and some relaxa- 
tion has been granted. Each new law has thus been 
the occasion of others, but each has left the vital 
principle of free incorporation untouched. It is so 
in accord with the spirit of the age, that it must 
ultimately prevail in every country where any degree 
of individual liberty exists. 

In attempting to estimate its general influence 
on modern society, it is not possible to discriminate 
closely between results due to the corporation on 
its original footing and those following from its 
creation under general laws. 

This, however, is certain, that those laws have 
been everywhere followed by an immediate and 
large increase in the number of business companies 
and the amount of capital invested in active enter- 
prises. Between the adoption of the Companies 
Act of 1862 and 1890, there were organized in Great 
Britain nearly thirty-five thousand corporations, with 

15 



2 26 FREEDOM OF INCORPORATION 

limited liability, of which those surviving in the latter 
year had a total capitalization of over ^220,000,000.^ 
In Prussia more were created in 1871, the year follow- 
ing the first general incorporation law, than in the 
whole of the first half of the century, and in 1872 
the number was more than doubled.^ Before the 
close of the year (1892) in which Germany enacted 
her limited liability quasi-corporation Act, sixty 
such companies had been formed there, with an 
aggregate capital of over $7,000,000, and nearly fifty 
more were added during the next three months.^ 
The French law of 1867, during its first full year 
of operation, produced nearly two hundred societes 
anonymes, and in 1881, when the movement reached 
high water mark, 976 of them were organized, be- 
sides fifty co-operative associations and 143 partner- 
ships en commandite with transferable shares.* In 
the United States the movement has been much 
more rapid. In the larger States more corporations 
are formed under the general laws every year than 
existed in the whole world at the close of the eigh- 
teenth century. Connecticut has a larger number 
than the Russian empire.^ 

1 Brockhaus' Konversations-Lexicon, GesellscJiaft mit beschrclnker 
Haftung. 

^ Handworterbuch der Staatswissenschaften, Aktiengesellschaften, 
126, 127. 

3 Brockhaus' Konversations-Lexicon, Gesellschaft ifiit beschrcinker 
Haftung. 

* Handworterbuch der Staatswissenschaften, Aktiengeselhchaften, 

159- 

^ Russia entered the nineteenth century with but one trading cor- 
poration. In 1881 she had 833. There were over 1500 formed under 
the general law of Connecticut during the first 33 years after its 



FREEDOM OF INCORPORATION 227 

English capital is largely represented both in Ger- 
man and American corporations. On the other hand, 
American capital seeking investment in maritime com- 
merce is often put into shares in an English limited 
liability company. Many a steamer thus plies under 
the British flag, and was built in a British shipyard, 
which is substantially owned by citizens of the United 
States, who find that they can in this way get the 
most for their money. 

In countries where general incorporation laws are 
not fortified by constitutional provisions, special 
charters are occasionally granted, but seldom ex- 
cept for undertakings of an international character. 

What, now, have these myriads of new-born cor- 
porations, coming into existence at the mere will 
of their promoters, accomplished of good or evil? 

To those who have put money in them, they have 
often brought severe loss. Such was notably the 
effect of the Italian general incorporation laws in 
stimulating the attempt to rebuild Rome in a day, 
which resulted not only in new splendors, but new 
ruins. The same thing may be noted of the German 
law, under the influence of which Berlin became the 
subject of a disastrous " boom." But the failure of 
a joint stock company is not as unmixed an evil 
to the community as that of a private individual 
with an equal capital. He may be ruined for life, 
and for him there is no financial resurrection. Even 

enactment. Special Laws of Conn., iv. 957. This number has since 
probably been more than doubled. 



2 28 FREEDOM OF INCORPORATION 

a discharge in bankruptcy will not restore his original 
credit. The company, on the other hand, can be 
easily re-organized under a new name, and the new 
possessors of its plant will take it at a low capitaliza- 
tion upon which they may be able to work it at 
a profit. Nor need the losses of the former owners 
be crushing to any of them. It will involve only 
what they invested in this particular concern, and 
men seldom risk their all in the stock of any single 
corporation. 

To such failures and re-organizations, Thorold 
Rogers attributes in part that general depression of 
prices throughout the world which has marked the 
closing quarter of the nineteenth century.^ 

In the trade of our times goods are sold in large 
quantities and at small profits. The cost of produc- 
tion is largely determined by the cost of the plant. 
The re-organized corporation which rises out of the 
wreck of an unfortunate predecessor, representing 
generally its bonds instead of its stock, has acquired 
its plant so cheaply that it can afford to sell low, and 
yet pay dividends. This gives it the command of the 
market. It undersells other manufacturers. They 
fail, and from the new ruins emerge new corporations, 
to repeat the process, and work their plants, acquired 
at foreclosure prices, on a basis of diminished cap- 
italization. The public thus gain what the original 
stockholders lost. 

A much more obvious and certain cause for the 
universal fall in values, or rise in what measures 
values, is to be found in the inexorable law of supply 
1 The Economic Interpretation of History, 311. 



FREEDOM OF INCORPORATION 229 

and demand. The more easily corporations are 
formed, the more easily capital is massed at its best 
for productive work. It is the corporation which 
owns the machinery and directs the power which are 
so multiplying the force of human hands, that with 
their aid ten men now turn out more manufactured 
goods in a day than ten thousand once could in a 
year. Asia and Africa must be civilized and edu- 
cated to demand the comforts of European and 
American life, before the market will be wide enough 
to satisfy the natural demands of corporate enterprise 
under modern conditions. 

And what is the influence of the corporation on the 
men whom it employs ? It is a hard master. It can 
always take the tone of a trustee. It represents 
others. Its only money is their money. It has no 
right to give away ; none to retain the sick and feeble 
in its employment at their old wages, unless it can be 
made to appear that this is, on the whole, for the 
pecuniary advantage of the concern. 

Against the incorporated employer has therefore 
risen up the incorporated employees. One of the 
great forces of modern society and modern politics is 
" organized labor." It has been a natural product of 
the factory system. That brings large bodies of work- 
men together under one roof, and subjects them to 
one rule. It tends also to centre manufacturing of a 
particular kind in a particular place or district. The 
boot and shoe business of the United States, for 
instance, radiates from eastern Massachusetts ; Lyons 
is the great seat of silk manufacture, and Manchester 



230 FREEDOM OF INCORPORATION 

of that of cotton goods. Laborers in the same trade, 
whether in the same factory, or in neighboring and 
competing ones, have naturally supplemented their 
association by day, by association in their evenings 
or Sundays for the promotion of their common inter- 
ests. These re-unions began to take the form of 
regular and permanent organizations in this country 
early in the nineteenth century. Charters of incor- 
poration were soon granted to such bodies, and they 
have since shared with all others the privileges of our 
general incorporation laws. In 1886, the national 
government took action in the same direction in favor 
of those labor organizations which branch out in sev- 
eral States. By an Act of Congress of that year,^ 
" any association of working people having two or 
more branches in the States or Territories of the 
United States for the purpose of aiding its members 
to become more skillful and efficient workers, the 
promotion of their general intelligence, the elevation 
of their character, the regulation of their wages and 
their hours and conditions of labor, the protection of 
their individual rights in the prosecution of their trade 
or trades, the raising of funds for the benefit of sick, 
disabled, or unemployed members, or the families of 
deceased members, or for such other object or objects 
for which working people may lawfully combine, 
having in view their mutual protection or benefit," is 
termed a " National Trade Union," and on filing arti- 
cles of incorporation in the office of the Recorder of 
the District of Columbia, shall " become a corpora- 
tion under the technical name by which said National 
1 24 U. S. Statutes at Large, 86. 



FREEDOM OF INCORPORATION 231 

Trade Union desires to be known to the trade ; " with 
power " to establish branches and sub-unions in any 
Territory of the United States." 

In England, trades-unions have been legal organiza- 
tions since 1825 ; in Italy since 1865 ; in Prussia since 
1866. France adopted the same policy during the 
Revolution of 1848, and again after the fall of the 
second empire. It may be said to be the rule of 
the world that labor is now free to combine for its 
own protection, and of most countries that it can 
obtain, if desired, the favor of incorporation on easy 
terms. The result has been a multitude of incorpo- 
rated benefit and insurance societies among working- 
men, handling considerable funds, accumulated in a 
common treasury from small dues or assessments 
contributed by many. In Great Britain four per cent 
of the entire population belong to some form of labor 
organization, and in 1883, the aggregate capital of 
those which give financial aid to their members or 
their families exceeded two million dollars. 

A man who has such means of protection, on which 
he has the right of a proprietor to rely, against loss 
of work or of capacity to work, is less likely to lay up 
any separate capital of his own. He saves enough to 
pay his weekly dues or occasional death assessments • 
to his society, and spends the rest of his wages, from 
day to day. If he falls sick, or meets with any acci- 
dent, — if he joins in a strike or suffers by a lock-out, 
the society treasury will supply his needs ; when he 
dies, it will pay a considerable sum to his family. 
What need, then, to scrimp and save? Dum vivimus 
vivamus. 



232 FREEDOM OF INCORPORATION 

The social consequences of this condition of things 
are most marked in the United States. Here, with 
high wages, cheap food, and low rents, the workman 
has always had the best chance to raise himself into 
the position of a capitalist, and formerly often accom- 
plished it. He might do it still, with equal or greater 
ease, but the motive has been so largely withdrawn, 
that in cities or manufacturing villages he commonly 
dies poor, trusting to his benefit society to provide 
for his family. Ordinarily his trust is not misplaced, 
but there are not seldom cases, where it is found, when 
the time for heavy payments comes, that corporate 
mis-management and reckless investments have led 
these organizations into insolvency. Failures of this 
kind again react upon the members, and incline the 
less serious minded of them still more to the philos- 
ophy of Epicureanism. Why save at all for future 
needs, if their own mates, even, cannot be trusted to 
keep what is entrusted to their care? 

No student of American life has failed to note with 
regret the rapid decrease, during the latter part of the 
nineteenth century, of the number of freeholders 
among our factory operatives. I believe the main 
cause has been their growing dependence on asso- 
ciated capital, administered by the various forms of 
mutual aid societies and fraternal or co-operative 
corporations. " Organized labor " is unfavorable to 
individuality. It merges the man in a class of men. 
He is no longer working out his own destiny :, others, 
to whom he gives but slight assistance, are working it 
out for him, and seeing that it rises no higher than 
theirs. 



FREEDOM OF INCORPORATION 233 

To one form of association among workingmen the 
principle of freedom of incorporation has proved 
unfriendly. It is that of the voluntary co-operative 
society. This may have some degree of success, in 
the absence of competition by corporations in the 
same business ; but only then. If it becomes incor- 
porated in self-defence, it is no better off, unless 
either the necessary capital is very small, as in the 
cooper's trade, or it is contributed in unequal shares, 
and the majority in interest control the management. 
France, in 1848, tried the experiment of lending such 
concerns, formed for productive industry, the nec- 
essary funds for starting in business. Half a million 
dollars was advanced to fifty-six of them from the 
treasury of the republic, but in four years thirty had 
gone into insolvency, and nearly half of the public 
money was irretrievably sunk.^ Co-operative trading 
societies have also in most cases fallen before the 
competing corporation; though in England they 
were of lasting benefit to all the larger towns in 
forcing the system of selling for cash on the retail 
stores. 

In the matter of political influence, incorporated 
workingmen's associations have also achieved less 
than was anticipated. Jealousies between different 
organizations and among the leaders in each, as well 
as the strong hold of the great parties of the country 
upon their members, have stood in the way of united 
action, except under unusual circumstances and on 
rare occasions. 

1 Villetard's " History of the International," Day's Transl., 24. 



2 34 FREEDOM OF INCORPORATION 

Passing now to the more general question of the re- 
flex influence of the modern corporation upon the 
economic conditions and administrative poHcy of the 
State whose laws gave it its being, we cannot fail to 
see that it has been an important one, and particularly 
as to methods of raising revenue. 

Rome was a great military power because of its 
political constitution. It was a collection of great 
families, each with its throng of poor dependents ; 
each with its single head. Rome knew on whom to 
call for supplies and troops. The modern State, 
following on lines that are almost parallel, has found 
an easy way to raise its taxes ; or at least to add to 
them. Each of its business corporations stands much 
in the position of the Roman patrician house. Its 
concentrated capital cannot be concealed. Its politi- 
cal relations to the State, as the holder of a public 
franchise, place it under a perpetual obligation, for 
practically, under modern law, the franchise may be 
withdrawn by the power that granted it, at will. The 
consequence is that in this country, at least in most 
of our larger and richer States, the corporation has 
become the great tax-payer, or to state it perhaps 
more accurately, the great tax-gatherer. 

De Tocqueville, in the first half of this century, 
noted this as a peculiar feature of the American 
system of municipal administration. In France, he 
said, the nation assisted the commune in collecting 
its revenues : here the town served the same office 
for the State, the local authorities including in their 
own tax levy whatever sum the law required the 
rate-payers of the municipality to contribute to the 



FREEDOM OF INCORPORATION 235 

general government, and as to that taking substan- 
tially the position of farmers of the revenue. 

During the last half of the century, the immense 
increase in number and importance of private corpora- 
tions has worked a great change in this respect. The 
State has turned to them for the discharge of the func- 
tion which it before committed to the municipalities. 
It has thrown upon them, without any intermediate 
agency, the great weight of State taxation. Its 
revenue is now largely derived from impositions on 
railroads, savings banks, insurance companies, and 
other corporations of lesser magnitude. They of 
course collect it from the public, with whom they 
deal, or the capitalists for whom they act, by adding 
it to the charges for service which they would other- 
wise make, or deducting it from the interest or 
dividends which they would otherwise pay. 

This policy is economical in one point of view and 
wasteful in another. It greatly reduces the expenses 
of public administration. There are fewer tax asses- 
sors and tax collectors. There are fewer and richer 
paymasters, and not one of them can hide himself 
or his property from the public eye. On the other 
hand, the revenue is so easily obtained, and those 
from whom it is really exacted are so far unconscious 
of their loss, that there is less opposition to free appro- 
priations for unnecessary objects. When the county 
or town added a certain percentage to the local tax 
as the contribution of its inhabitants to the expenses 
of the State, every one of these felt the increase of 
burden, and looked to his representative in the 
legislature to see that at least it grew no greater, from 



236 FREEDOM OF INCORPORATION 

year to year. The corporation tax, also, falls more 
upon the city than the country. It is of little concern 
to the small farmer who seldom travels by rail, who 
has no money in the savings bank, no insurance 
upon his life, and probably none upon his house. 
Our State legislatures are generally controlled by the 
agricultural interest, and burdens that do not affect 
that unfavorably are easily assumed.^ 

No single State can pass a law which will not 
disturb the equilibrium of its old laws in some 
unanticipated direction. The civilized world during 
the nineteenth century has given its sanction to the 
general incorporation law, and we see its effect on 
other laws and other interests as yet but " through a 
glass, darkly." Already the new creatures which it 
has called forth control its commerce ; they conduct 
its manufactures ; exploit its mines ; own its timber 
lands. They name the prices for its agricultural 
products. We look to them for protection against 
the casualties of fire, of accidental injury, of death 
itself. They have charge of our religious worship ; 
of the higher education of our children ; of the 
regulation, largely, of the social duties of those who 
are fellow-workers in the same calling, both to each 
other and to the general community. 

This vast, impersonal force has grown up so slowly 
from its Roman foundation, to a work of which the 
Romans never dreamt, that we find it hard to see how 

^ The new policy was fully adopted by Connecticut, in 1890, when 
the State tax, which had been annually laid for over 250 years, was 
abandoned. The expenses of the State in 1S89 were about a million 
and a half. In 1896, they were nearly two millions and a quarter. 



FREEDOM OF INCORPORATION 237 

far it has stepped outside of its former self. It is 
harder to forecast its future progress. Is this child 
of the State, made in its image, sharing its powers 
and immunities, to grow until it becomes re-united 
to it, re- absorbed into its being, and the State itself 
assumes these functions at the cost of all the people, 
and for the profit of all its people? Or will individ- 
ualism re-assert itself, and these monster corporations 
fall to pieces by their own weight to make room, 
under governments which have no end but to pro- 
mote the good of their citizens, and already protect 
property and personal security as never before in 
human history, for the great man to re-appear in a 
new race of merchant princes, and railroad kings 
beholden to no stockholders for their palace cars? 

Of these two possibilities the latter is far the more 
remote. The Barings, early in the century, were 
heroic adventurers for fortune, but towards its close 
were glad to seek safety under the mantle of the 
" Baring Brothers & Co. (Limited)." The " young 
Napoleon of finance," whose successes dazzled Wall 
Street not many years ago, soon ended his career in 
the penitentiary. The Rothschilds are a survival of 
other days. The Goulds and Vanderbilts have worked 
through corporations. 

The tendencies of our age towards Collectivism for 
capital demand it both for the accumulation of funds 
and the aggregation of owners. It is demanded, if for 
nothing else, because the millionnaire in active busi- 
ness has become an object of general criticism. The 
corporation doubles its capital, and no one complains. 
The new stock is widely distributed, and no one man 



238 FREEDOM OF INCORPORATION 

is conspicuous for his ownership. Not so when the 
millionnaire is known to have laid by another miUion 
by some successful enterprise or speculation. He 
has taken from many. It may be that he has also 
given to many, but this is forgotten. By a large part 
of the community he is looked on as a sort of enemy 
to the human race, who has run up the black flag. 
His plan may be economical. He has no dividends 
to pay to others. There is little chance for waste, if 
he is active and vigilant. But his very activity and 
vigilance are counted against him by half the world. 

Karl Marx, in his Das Kapital, says that the natural 
and inevitable end of modern society is expropriation 
of the many by a few usurpers, but that this simply 
makes it easy and certain that a new order of things 
will follow, beginning with the expropriation of these 
few usurpers by the many, whom they have been 
plundering. 

If the great operations of modern business were 
conducted by single capitalists, in their own name 
and on their own account, there would be much more 
in this prophecy of socialism. That they are con- 
ducted by the corporation and the trust — that is by 
many for many — takes half the sting out of his say- 
ing, half the foundation away from his philosophy. 



CHAPTER VII 

AMERICAN JURISPRUDENCE ^ 

THE truest gauge of a nation's civilization is its 
system of jurisprudence. It is a thing natu- 
rally of slow growth and of upward growth. If it 
ceases to rise and spread, we have a certain sign that 
the vital forces of the people are exhausted, for the 
people are the real sources of what is enduring and 
uplifting in legal institutions. 

The United States and the States of which they are 
composed are building up on American soil a dis- 
tinctively American jurisprudence. The great stretch 
of territory to the north of us is a dependence of a 
distant government, and looks for leadership there. 
Our sister republics to the southward have been con- 
tent, for the most part, to follow the lines of the 
Roman law. But to us, the spirit of independence 
that came so early to give life and character to forms 
of government and judicial establishments, brought 
with it a transforming power. Latin civilization had 
lent color to the far south and southwest. The Dutch 
had brought something of it, and more of their own 
rugged republicanism, to New York. The Puritans 

1 In preparing this chapter free use has been made of an address 
by the author, delivered before the Ohio State Bar Association at 
Put-in-Bay, July 14, 1892. 



240 AMERICAN JURISPRUDENCE 

had learned in Holland much that they afterwards 
put into the institutions of New England. But it is 
not what we owe to Spain, or France, or Holland, 
that has made American so different from English 
jurisprudence. The nation that has governed itself 
for more than a century, that has within it States that 
have governed themselves for more than two centuries, 
cannot but have a law and life peculiar to itself, the 
fruit of the ground on which they grew. 

It has been said that there is a Great Britain and a 
Greater Britain. But no one land can now be called 
our mother country. Once Boston and Philadelphia 
might well give that name to England, and New 
Orleans and St. Louis to France ; but now, when, if 
we count by nationalities, there are few cities in 
Germany containing more of German birth than does 
New York or Cincinnati, and few in Norway with a 
Norse population like that of some of our North- 
western towns ; when the best half of Ireland is in 
America; when the face and tongue of the Italian 
and the Hungarian have become familiar on our 
streets, — we may say, with Cicero, that we have our- 
selves commenced our line of ancestry. 

There is to rise here, Herbert Spencer has told us, 
from the mixture of allied varieties of the Aryan race, 
a finer type of man than has hitherto existed, — a 
type more plastic, more capable of the modifications 
needed for the completer social life that is to come. 
For this new race we are to prepare the way; and 
we and those who went before us have prepared it 
by the foundation of a broader and humaner juris- 
prudence. 



AMERICAN JURISPRUDENCE 241 

Into the law of nations we of America have intro- 
duced the principle of voluntary expatriation. It is, 
indeed, the condition of our existence. The doctrine of 
perpetual allegiance was undisputed in the Old World. 
Its application to Americans by the British Crown was 
one of the grievances recited in the Declaration of 
Independence ; but we ourselves asserted its obliga- 
tion long after independence had been achieved. 

Jeremiah Mason once said that the development of 
an American jurisprudence could only be looked for 
from the courts of the national government. Upon 
this question, however, it was a court of a State, that 
of Pennsylvania,^ which, following the language of 
her Constitution, framed by Franklin, first declared 
expatriation an original and indefeasible right of man ; 
and this at a time when those of the United States 
adhered to the rules of the common law.^ Thus it 
was left to Congress to affirm by statute the American 
principle, as soon as the nation felt strong enough to 
assert it against the world,^ and treaties which have 
been made, in pursuance of this declaration, have 
now obtained its recognition in almost every country 
that can call itself civilized. 

This new rule of American jurisprudence is the work 
of the bar, rather than the courts. Its earliest sup- 
porters were Adams and Jefferson, and to our At- 
torney-Generals, and the great lawyers who, from time 
to time, have had the direction of the Department of 
State, we owe especially its international authority. 

1 Murray v. McCarthy, 2 Munford's Reports, 393. 

2 Williams' Case, Wharton's State Trials, 652. 

3 U. S. Revised Statutes, § 1999; Act of 1868. 

16 



242 AMERICAN JURISPRUDENCE 

For ourselves, also, we have changed the law of 
nations as to treaty obligations, in its fundamental con- 
ception. Treaties are not for us mere contracts, with 
no higher sanction than the military power of the other 
government. The Constitution of the United States 
has raised them to the position of the supreme law of 
the land, as binding as an Act of Congress in every 
American court. 

Passing from the relations of States to States, to 
those of the State to its own citizens, we find a dis- 
tinctively American system of criminal procedure. 

We have viewed the punishment of crime from a 
new standpoint, that of the reformer. Nine-tenths of 
those who, in England a hundred years ago, would 
have been hanged, have been here, instead, con- 
demned to labor for a term of years in what we have 
named, with kindly hope, a penitentiary. Pennsyl- 
vania was the first of civilized communities to inaug- 
urate this change, under her Constitution of 1776.^ 
The release of one convicted of crime on probation, 
under a suspension of sentence, also, and reforma- 
tories for young off'enders, are distinctively American 
innovations.^ 

It is difficult for men of our day to believe how 
much of " man's inhumanity to man " was shown in 
the criminal law of England, when the institutions of 
this country first took shape. The common law was 
rigorous enough, but in the days of the Stuarts and 
the Georges the number of capital ofiences was in- 

1 2 Poore's "Charters and Constitutions," 1547. 

2 See Chapter IX. 



AMERICAN JURISPRUDENCE 243 

creased by nearly two hundred. It was not until the 
beginning of this century that hanging ceased to be 
the punishment of a pickpocket. 

To arrest a man on a charge of crime was almost 
equivalent to a conviction, for he could produce no 
witnesses in his own behalf, nor have counsel to plead 
his cause. It makes one's blood boil in his veins to 
read one of the shorthand reports of the State trials 
of the seventeenth century: such, for instance, as that 
of Stephen College, at Oxford. If a conviction did 
not lead to the gibbet, the criminal was either trans- 
ported or turned loose on the community after some 
mark of bodily degradation, perhaps with his ears 
cropped, or a hand struck off, to fix the memory of 
his shame upon him as long as life should last. De- 
grees of punishment for the greater crimes were 
marked simply by the degrees of barbarity with which 
the wretch was executed. Hanging was, indeed, a 
mild penalty, when compared with burning, quarter- 
ing, and disembowelling. 

Not until the great popular movement which found 
voice in the Reform Bill, and has made England more 
of a democracy than the United States, were these 
cruelties swept away from English law. 

But in guarding against their presence here, Amer- 
ican jurisprudence may have gone too far. To forbid 
the examination of the accused by torture, or under 
any form of compulsion, was right; but was it neces- 
sary to forbid the committing magistrate to ask him 
anything, except whether he admits or denies the 
charge? I believe we have put the State at a dis- 
advantage in preventing it from calling upon the 



244 AMERICAN JURISPRUDENCE 

prisoner to give an account of the transaction out of 
which the charge arose — to tell his own story in his 
own way, knowing that whatever he says may be 
used against him on the trial.^ And is there a reason 
which is really good for giving the convict an appeal 
to our highest courts on the most trivial points of law, 
when the rights of the public are generally determined 
finally by the trial judge? It is this over-kindness to 
the individual, to the prejudice of the State, which 
renders possible, and, as many say, defensible, such 
things as the killing of the Italians at New Orleans, 
and the lynch-law executions that, in some of our 
States, outnumber, every year, those had pursuant to 
the sentence of the courts. 

In one respect, our criminal law is perhaps less 
favorable to the accused than was that of England. 
We adopted early the Continental method of prose- 
cutions by public officers, instead of leaving them 
to be brought or dropped according to the dic- 
tates of personal feeling, or the desire for pecuniary 
reparation. 

The strength and value of government by party 
have led us to place party conventions under the pro- 
tection of the criminal laws. Fraud in balloting at a 
nominating caucus is punished in the same way as 
frauds at public elections. A new order of rights is 
recognized : those which flow from the duty of politi- 
cal organization; for it is the duty of every citizen to 
use his elective franchise in the most effective way. 

1 See Chapter V. 



AMERICAN JURISPRUDENCE 245 

That way, the law feels, is through party combi- 
nations, and therefore our jurisprudence is enlarged 
to embrace their recognition and protection. 

The law of libel, in any government, is one of the 
surest tests by which to estimate its hold upon the 
people. The United States were the first to renounce, 
for their rulers, the protection of this law. When the 
decemvirs were framing the Twelve Tables of Rome, 
few as were the subjects they thought it important to 
cover in their code, they were careful to make libel 
against the State a capital offence ; for they were the 
State, and they were turning a republic into a despot- 
ism. When the people of England were beginning to 
demand a greater share in her government, it was the 
law of libel to which the Crown resorted for its surest 
weapon of defence, and it was the pride of the English 
bar that, in criminal cases, they nullified it by the aid 
of the jury. With us, to the United States the law 
of libel is unknown, because they have no common 
law, and because the only statute ever passed by 
Congress to replace it, on this subject, was swept 
away in the first change of administration, and, in- 
deed, in no small part was the cause of that change 
of administration ; while in our States we have almost 
everywhere come to the position that, both in civil 
and criminal cases, truth is a justification, unless actual 
malice Is proved. 

We have ventured farther than any nation ever dared 
to go before in forbidding all ex post facto laws; and 
this and other guaranties of individual right we have 



246 AMERICAN JURISPRUDENCE 

woven into our written constitutions, so as to make 
them the supreme law, as unalterable as the frame of 
government itself. 

In the same irrevocable way we have severed the 
relations of Church and State, 

The famous definition of jurisprudence given by 
the Roman law, that it is divinarum atqiie hunianarum 
reruin notitia, jiisti atque injusti scientia, has been 
sharply attacked by modern critics, as confusing 
notions of law and religion. But in what nation, be- 
fore our own, were law and religion ever separated in 
their relations to the State? From the first begin- 
nings of patriarchal society the world has looked at 
them as coming from a common source, upheld by a 
common sanction, and forming parts of the same ad- 
ministration of government. The authority of each 
was deemed necessary to support the other. 

First of nations, the United States, without the 
least reflection on religion of any form, severed the 
Church from the State, and freed the current of its 
jurisprudence from all ecclesiastical control. 

Nor has this mutual independence been found in- 
compatible with restraining power in the civil courts 
where private rights were affected by unjust acts of 
those in ecclesiastical authority. In the organization 
of the great mother church of Christendom, the 
bishop has the power to remove any priest in his 
diocese from his parish, at his discretion. An Amer- 
ican bishop exercised this power, for what seemed to 
him sufficient cause, but without notice or hearing. 
The priest applied to the courts for redress, and it 



AMERICAN JURISPRUDENCE 247 

was held, in granting it, that though it might be 
according to the laws of that church to deprive a man 
of his livelihood, on a charge of failure in duty, 
unheard, it was not in accordance with the laws of 
the land.^ 

The jurisprudence of most countries has been based 
on the conception of the rights of the State as against 
individuals. American jurisprudence rests equally 
on the rights of the citizen against the State. We 
believe that the State owes an active duty to its 
people, and that its welfare is only important as 
reflecting theirs. 

I have spoken of our public prosecutors for wrongs 
to individuals. Their appointment is but one illustra- 
tion of a principle of American government which 
demands that all business, in the well doing of which 
the public have an interest, shall be done by or 
under the inspection of a public officer, and so that 
the public may have full knowledge of it. This has 
brought a new security to landed interests. It makes 
it possible for any man of ordinary education to trace 
a land title, because the material is at his command, 
systematically arranged, in a public record office, not 
stored in some muniment chest in an old tower, nor 
even buried in the files of a notary, whose position 
is but half official. 

Our rules of civil procedure are our own. A few 
States may still adhere in name to the cumbrous 
methods of English origin, but in most we have, and 

1 O'Hara v. Slack, 90 Pennsylvania State Reports, 477. 



248 AMERICAN JURISPRUDENCE 

in all soon shall have, the simple rules of what, for 
want of a better name, we call Code Pleading. Orig- 
inating in New York, not fifty years ago, it has, in 
the lifetime of its distinguished author, David Dudley 
Field, not only overspread a large part of our own 
country, but supplanted the forms of the common 
law in the very land of their birth. 

Our attachment to the principle of personal liberty 
has modified the law of civil process. Insolvent 
debtors had been treated in most countries as a kind 
of criminals. America began to open their prison 
doors, at the era of the Revolution.^ It has led to the 
extension of liberty of contract. It encouraged us to 
initiate a new policy which the world has copied, that 
of giving free liberty of incorporation to all who wish 
it, on equal terms, under general laws.^ 

The law of evidence has been changed in a vital 
point. In no country before our own has every man 
been admitted as a witness in court. There have 
been distinctions of class, exclusions from interest, 
exclusions for infamy. 

American jurisprudence is unwilling to condemn 
the lowest or worst of men unheard ; it is unwilling to 
believe that pecuniary interest necessarily leads men 
to forswear themselves, or to assume that every party 
to a suit would naturally perjure himself to get a ver- 
dict. The Roman law and the rules of English 
Chancery allowed you to force an oath upon your 

^ See the Constitution of Pennsylvania of 1776, art. i, sec. 28; 2 
Poore's "Charters and Constitutions," p. 1546. 
2 See Chapter VI. 



AMERICAN JURISPRUDENCE 249 

adversary, but only at the cost of making him, so to 
speak, your own witness. We have done more 
wisely, I think, in admitting testimony from all, on 
equal terms, leaving it for the triers to give it, in each 
case, such weight as it may deserve. The first statute 
of this kind in America was enacted in Connecticut, 
in 1848. Its author^ soon afterwards went abroad in 
the diplomatic service, and, when in England, brought 
it to the attention of some men of influence, through 
whose efforts an Act of Parliament, of a similar nature 
(14 & 15 Vict., ch. 99) was passed in 185 1. 

We have given a new character to trial by jury. 

The right of the jury to judge of the law we have 
extended to all criminal cases, and the Continental 
plan of giving them partial control over the sentence, 
in case of conviction, has been extensively followed. 

The authority of the court has also been weakened 
in civil cases, by securing greater privileges to the 
bar in shaping the terms of the charge. The dangers 
of these changes in the jury system were forcibly 
portrayed in a paper read before the American Bar 
Association, by Mr. Justice Brown of the Supreme 
Court of the United States, in 1889.^ This mode of 
trial, as it existed at common law, was well adapted 
to secure the rights of the masses against the classes. 
But it was a system of exact balances. It demanded 
a free and fearless judge as well as a free and fearless 
jury. The jury may drag the car of justice, but the 

1 The late Charles J. McCurdy, LL.D., afterwards an Associate 
Judge of the Supreme Court of Errors of Connecticut. 

2 Reports of the American Bar Association, xii. 265. 



25 o AMERICAN JURISPRUDENCE 

judge must drive, or they will drag it to destruction. 
The inroads of the bar upon his prerogatives seem to 
me a mark of what I venture to term, on the whole, 
the degrading effects of the American plan of an 
elective judiciary. It indicates a distrust of the in- 
dependence or the intelligence of the court. It fore- 
shadows the gradual extinction of the jury trial in 
civil causes ; because that can never be permanently 
satisfactory unless a large discretion, not to say des- 
potism, is left in the hands of the thirteenth man. 

We have given, I cannot but think, an undue prom- 
inence to judicial precedents as a natural source or 
enunciation of the law. The multiplication of distinct 
sovereignties in the same land, each fully officered, 
and each publishing in official form the opinions of its 
courts of last resort, bewilders the American lawyer in 
his search for authority. The guiding principles of 
our law are few and plain. Their application to the 
matter he may have in hand it is his business to make, 
and if he spent more time in doing it himself, and less 
in endeavoring to find how other men had done it in 
other cases, he would, I believe, be better prepared 
to inform the court and serve his client. 

There have been lawyers bold enough to attack bad 
precedents in our highest courts and to destroy them. 
A conspicuous instance of coming to a right decision 
by overturning a wrong one is furnished by the his- 
tory of the Supreme Court of the United States. In 
1825, a libel in admiralty for seamen's wages, earned 
upon a steamer on the Missouri River, was dismissed 



AMERICAN JURISPRUDENCE 251 

for want of jurisdiction, and, on appeal, Mr. Justice 
Story delivered the unanimous opinion of the court, 
that admiralty furnished no remedies for services that 
were not rendered on tide-water. 

There was no better authority for this than that 
such had been the rule of the English Admiralty. 
But a quarter of a century later the same court speak- 
ing through a greater though less learned judge, and 
with but one dissenting voice, reversed their position, 
and declared that America could not adopt the Eng- 
lish definition, by which, in the terse phrase of the 
Chief Justice, "the description of a public navigable 
river was substituted in the place of the thing in- 
tended to be described." This last decision in the 
case of TJie Genesee Chief illustrates the manner in 
which the development of our law has been affected 
as time has gone on by changes in our commercial 
conditions, and perhaps in our national mode of 
thought. During the last half century there has 
been a gradual but marked substitution of practical 
for theoretical canons of decision. This freer spirit 
of selection and adaptation has done much to dif- 
ferentiate our law of private corporations from that 
of England, and to make the English reports of con- 
tinually decreasing value as authorities here. The 
practical necessities of the case have driven Ameri- 
can courts to extend to private business corporations 
the general Chancery doctrine applicable to chari- 
table corporations, that the managing officers or 
directors occupy the position of trustees. The Eng- 
lish courts admit the trust relation as regards the 
shareholders, but deny it as respects the creditors of 



252 AMERICAN JURISPRUDENCE 

the company.^ And as to the latter, we ourselves 
have begun to doubt whether our decisions have not 
gone too far, and to draw the line between transac- 
tions attacked by creditors who were such before the 
thing was done, and those impeached only by par- 
ties to whom the corporation became afterwards in- 
debted, as well as to limit the " trust-fund doctrine " 
to concerns already in the hands of a court of equity 
or insolvency for winding up.^ 

We have also from the first sought for the powers 
of a corporation in its charter, and denied it any 
which were not in that either given or implied. The 
English courts have held to the assumption that a 
corporation has all the powers which it has not been 
forbidden to exercise. The difference is wide, and 
has done much to lead England to that distrust and 
jealousy of corporations which has marked her legis- 
lation upon that subject from early days. 

The case of T/te Genesee Chiefs to which allusion 
has been made, is one of the eight or ten decisions that 
stand out as the great landmarks of American juris- 
prudence. I should put first in time that oi Marhury 
v. Madison,^ in which Marshall asserted the right of the 
courts to declare any statute void which was in con- 
flict with the Constitution. The second place I would 
assign to Fletcher v. Peck^ where a private individual 
was protected against the revocation of a public grant. 

1 Poole's Case, Law Reports, 3 Chancery Division, 322. 

2 Hollins V. Brieriield Coal & Iron Co., 150 United States 
Reports, 371. 

3 12 Howard's Reports, 455. * i Cranch's Reports, 137. 
s 6 Cranch's Reports, 87. 



AMERICAN JURISPRUDENCE 253 

Then comes Dartmoicth College v. Woodward} in 
which Marshall read into the words of the Constitu- 
tion a meaning which he admitted might never have 
been thought of by the men who framed or the 
people who ratified it. It made the subjection of the 
sovereign State to the performance of its obligations, 
at the command of the civil court, a rule of our juris- 
prudence. It brought a new theory of corporate 
rights into existence. If they rested on a public con- 
tract, that contract the public must perform. 

To Milligans Case'^ we turn when we seek the 
limitations of individual liberty in time of war; to 
Cmnmings v. Missouri'^ for its safeguards against ex 
post facto legislation. The Slaughter House Cases * 
brought sharply out the distinctions between the citi- 
zen of a State and the citizen of the United States. 
In Loan Association v. Topeka^ those limitations on 
the legislative power, which are inherent in the nature 
of a free government, are stated with telling force, in 
their bearing on questions of a public use. 

There are other decisions of the Supreme Court of 
the United States which are as often referred to as 
these, because they settle hard-fought controversies 
over the meaning of our Constitution in its political 
aspects. Those that have been mentioned are of 
especial note in their bearing on the relation of the 
law to the individual. 

That a woman is an individual, even if she be a 
wife, and does not forfeit her personal identity by 

1 4 Wheaton's Reports, 518. 
2 4 Wallace's Reports, 2-124. ^ Ibid., 277. 
* 16 Wallace's Reports, 78. ^ 20 Wallace's Reports, 655. 



254 AMERICAN JURISPRUDENCE 

marriage, is another of the positions of American 
law. 

Our treatment of the property relations of husband 
and wife, as it is now fixed by the statutes of most of 
our States, is almost as far from the Roman or Con- 
tinental as from the English rule. Its principle is 
not community but independence. 

This separation of property rights is but one of the 
inroads made by American law on what had been 
regarded throughout Christendom as the natural char- 
acteristics of the marriage relation. 

The Church of Rome had declared marriage to be 
a sacrament, and indissoluble except by its authority. 
The Protestants of the Reformation denied this, and, 
.under the Puritans, civil marriages and civil divorces 
were early American institutions. With the gradual 
extension of the causes of divorce, and the gradual 
abbreviation of the trial of a divorce case in our 
courts, all are now familiar. There have been countries 
before in which divorce was as free in law, but none 
where it has been so free in fact. For five hundred 
years the Roman husband could put away his wife 
at will, and for five hundred years only one availed 
himself of his right, and he was, like Napoleon, 
unwiUingly driven to it by the demands of the 
State. 

It seems to me that the number of causes of divorce 
recognized in American law might well be substan- 
tially reduced. Indeed, a movement in this direction 
has been made, which within the past twenty years 
has had considerable success. There is a National 
Divorce Reform League, which has been active and 



AMERICAN JURISPRUDENCE 255 

successful, and only three States^ now retain the 
" omnibus " clause in their divorce statutes, which 
permits divorces for any cause satisfactory to the 
court- 
But the evils of our divorce system lie quite as 
much in our method of procedure. A recent report 
on this subject by the Commissioner of Labor of the 
United States showed that a fifth of all American 
divorces are granted to parties who were married in 
some other jurisdiction. It is well known how short 
a residence on the part of the petitioner is generally 
made sufficient, and on how slight a notice to a non- 
resident respondent, the court proceeds. Such a 
notice is always dictated in the first instance by the 
petitioner's attorney, and his discretion in the matter 
is seldom revised, if he keeps within the letter of the 
law, however improbable it may be that the other 
party has in fact any knowledge of the proceeding. 

So far as divorces obtained on default, upon news- 
paper publication, against non-residents, are con- 
cerned, the general rule of jurisprudence, here and 
everywhere, is that they are totally void, unless the 
petitioner was domiciled within the jurisdiction of the 
court, or the marriage was celebrated there. Just 
such American divorces have been disregarded in 
England and in Canada, and a second marriage by 
the divorced party treated as bigamy.^ The Ameri- 
can Bar Association, ten years ago, drafted a statute 
to remedy this evil, by making domicile, instead of 

1 Washington, Kentucky, and Rhode Island. 

2 Briggs V. Briggs, English Law Reports, 5 Probate and Divorce, 
163. 



256 AMERICAN JURISPRUDENCE 

residence, the test of jurisdiction, which has been 
adopted in two States.^ 

I have sought to state only such of the leading 
features of American jurisprudence as are not found 
in other systems or not found under similar condi- 
tions. One may be added of minor importance, but 
interesting, as the natural and spontaneous growth of 
the soil. It is the new rule of partnership law by 
which the death of a partner in a mine does not dis- 
solve the partnership. The rough and dangerous life 
of the mining camp demanded the innovation and 
obtained it, at the hand of the courts, without aid 
from statute. 

The drift of American jurisprudence, particularly 
in the Pacific States and the New West, is towards 
the expression of the law in an orderly and official 
form; in other words, towards codification. It has 
approached the question from the practical side, and 
in a practical way. The early colonies soon put 
their scanty statutes into print, arranged in some 
convenient way for ready reference, the various heads 
often following each other in alphabetical order, as 
in our digests of reports. New York led the way 
towards a more systematic and comprehensive treat- 
ment of the subject, by her Revised Statutes of 1827, 
— a revision which, though in many points revolu- 
tionary, was so well considered and well done that it 
has held the ground for over half a century, while in 
most of our States revision succeeds revision every 
ten or fifteen years. 

1 Minnesota and New Hampshire. 



AMERICAN JURISPRUDENCE 257 

But there is nothing distinctively American in codi- 
fication. It is simply un-English, It is the natural 
aim and end of every system of jurisprudence, — of 
jurisprudence itself, apart from any particular system 
of it. Jurisprudence is the science of law, and the or- 
derly statement of its rules can be called by no better 
name than Code. 

I have used the term " American jurisprudence " 
as meaning the scientific conception of that system 
of law judicially administered within the United 
States, — not alone the science of American law, or 
the science of law as applied to America. It is the 
judicial administration of law which, with us espe- 
cially, gives it a character and vitality of its own. 

It was a true and profound remark of De Tocque- 
ville, that the extension of judicial power in the 
political world ought to be in the exact ratio of the 
extension of elective offices ; for if these two institu- 
tions do not go hand in hand, the State must fall into 
anarchy or into subjection. 

Our county courts, our justices of the peace, with 
combined administrative and judicial functions, our 
judge-made law, our Constitutions, as interpreted and 
expanded from the bench into something far wiser 
and better than their builders knew, these, quite as 
much as our printed statute-books, are the sources 
and safeguards of our rights and liberties. 

There are few countries where the removal of pub- 
lic officials is as difficult, often as impossible, as with 
us. There is no country where the power of the 

17 



258 AMERICAN JURISPRUDENCE 

courts to direct their action and to punish their 
misconduct is as great. 

Nor is it the executive office only which is thus 
amenable to judicial control. The subjection of the 
legislature to written rules, enforceable by the courts, 
is a feature peculiar to American jurisprudence. 

The honor of framing the first written constitution 
of government which deserves that name, belongs, I 
believe, to the early settlers on the banks of the Con- 
necticut; but it was not till another century that we 
find the judiciary recognized as the guardians of Con- 
stitutions, and, as such, the superiors of the legislature. 

It is a power that could only be intrusted to a 
trained bench of trained lawyers, and which could only 
be exercised in a land where government is settled on 
deep foundations and protected by the free force of 
public opinion. It has given birth to what is really a 
new science of political law, for constitutional law, 
as we use that term, is wholly an American creation. 
This function assigned by us to the judiciary has 
found no place in the institutions of our sister Amer- 
ican republics. Colombia has made it the subject of 
a singular compromise in her Constitution of 1886.^ 
No bill can become a law without the approval of the 
President of the republic, unless passed over his veto 
by a two-thirds vote. If his disapproval should be 
based on the belief that it is unconstitutional, the 
Supreme Court are to decide within six days whether 
his opinion is well founded. If they agree with him, 
the bill fails ; if they hold it constitutional, it becomes 

1 Supplement to Annals of the Am. Academy of Political and 
Social Science, 1893, pp. 38, 56. 



AMERICAN JURISPRUDENCE 259 

the law. The judges are thus brought, in a most ob- 
jectionable manner, into direct and public collisions 
either with the executive or the legislature. Such a 
device only belongs to a country whose history is 
that of revolutions. 

The occasional and peaceful exercise of the active 
sovereignty of the people in direct legislation, through 
special delegates meeting for a special purpose, is 
an American idea, — American, that is, as applied to 
governments embracing an extensive territory and 
founded on representative institutions. The city- 
State could furnish no precedent for us, and we were 
equally remote from that state of society which 
Tacitus describes as existing in his day among our 
Teutonic ancestors: " De minoribus priiicipes co7tsul- 
tant: de majoribus oinnes^ 

We call upon the people to act only on matters 
of fundamental law. In our constitutional conven- 
tions they resume, at long intervals, for a few weeks' 
time, their delegated powers, and re-found the 
State. 

Conventions of the people, national assemblies, 
are common enough in history, but their work has 
been, or come to be, that of revolution. Our sister 
republic, France, has not ventured to follow us in 
trusting the people with this great power, and in 
waiting for them to act, whatever the emergency 
may be. Her plan is that if each house of the legis- 
lature deems a revision of the Constitution necessary, 
they may meet at once in joint assembly and effect 
it by a bare majority. 



26o AMERICAN JURISPRUDENCE 

A direct reference to the people, at the polls, of 
proposed changes of a constitutional character is 
also one of our American institutions. The Colony 
of Connecticut introduced it during the seventeenth 
century, and it was incorporated in the Constitution 
of the State, in i8i8.^ It has become familiar in 
European practice, under the Swiss system of the 
referendum, but perverted to the questionable use 
of submitting mere questions of administrative policy 
to popular decision. 

This system of American jurisprudence whose 
lines I have tried to trace, is the living voice of 
the American bar, — of the American bar of many 
generations. The spoken word, uttered by a Thomas 
Lechford, or James Otis, or Patrick Henry, or John 
Marshall, in other days, may be forgotten. But, 
if it stirred men's hearts ; if it sank into men's 
minds ; if it carried conviction ; if it was the foun- 
dation of verdicts and judgments, customs and 
statutes, the circle of its influence is widening 
still. 

There are those who tell us that all that is said on 
earth, when it dies to the human ear, floats on, upon 
the wings of air, to remain forever a witness for 
or against us, in the life beyond. It may be so ; 
but whether physical force be or be not eternal 
and inextinguishable, it is so that the influence 
of human thought in the development of institutions 
will last as long as the history of civilization. 

The science of American jurisprudence is just 

1 Papers of the New Haven Colony Historical Society, v. 182. 



AMERICAN JURISPRUDENCE 261 

beginning to crystallize into form. The new race, 
whose character it speaks, is still but half de- 
veloped. 

The bar in this is their mouth-piece. The practis- 
ing lawyer finds his days passing all too swiftly 
in the common routine of the office and the court- 
room ; and as he is advising his clients, or advocating 
their causes, hardly feels that he is doing anything 
which can outlive the occasion that calls it forth. 
But the consultation, the argument, the opinion, 
by which the conduct of men, the disposition of 
controversies or their prevention, is determined, have 
an influence wider than we think. 

These are the materials from which is being built 
up, by slow and imperceptible accretion, a new 
jurisprudence. The philosophy of the law must be 
founded on the practice of the law. 

Others in after years may be the ones to trace 
out the succession and growth of general ideas, to 
formulate propositions, to array conclusions in scien- 
tific arrangement; but, after all, what they give 
is only form. The substance of our jurisprudence 
must be the work of the plain, average American 
lawyer. It is a monument like the great pyramid, 
to perpetuate, not the names of those who made 
it, but, what is better, their work; and, better still, 
it is not to perpetuate all their work, but only what 
was best in it. 

It has been finely said by one of the first of liv- 
ing American jurists ^ that, " The glory of lawyers, like 

1 Judge Oliver Wendell Holmes. 



262 AMERICAN JURISPRUDENCE 

that of men of science, is more corporate than indi- 
vidual. Our labor is an endless organic process. 
The organism whose being is recorded and protected 
by the law is the undying body of society." 

This work in America began with the first begin- 
nings of its history, and will continue till that history 
ends. It has had at all times the stamp of individual- 
ity. It has called no man master. It has never 
copied where it served its purpose better to originate. 
It struck out primogeniture because it believed an 
equal distribution of property the best foundation of 
republican government. It forced every deed on 
record, without respect to feelings of family pride. It 
brought justice within the reach of every man by a 
system of county courts and magistracies, under 
which the judge comes to meet the parties, instead of 
forcing them to travel to the seat of government. 

It is now perplexing the national judiciary, as they 
are called on to declare the limits of public manage- 
ment of private property. Must a man, whose busi- 
ness has been established under one law, submit, 
uncompensated, to its destruction by another? Can 
a State demand of its railroads that they shall reduce 
their fares or freight-charges so low as to preclude a 
dividend upon their stock? Can it require them to 
build new stations, or reconstruct their roadbed, with 
no regard to their financial abihty? Is the police 
power of a State susceptible of legal definition — that 
is, of legal restraint? Such questions are now occu- 
pying and often dividing the Supreme Court of the 
United States. They are peculiar to our system of 
government. They illustrate its merits and its de- 



AMERICAN JURISPRUDENCE 263 

fects. They are but the latest instances of a long 
series of great judicial problems which have arisen 
under our institutions, and which could have arisen 
nowhere else. 

For the first of them we may look back to the very 
beginning of our colonial records. Nor need we be 
surprised that American jurisprudence should have 
taken, so early, a trend and aspect of its own. The 
general circulation of ideas, the general diffusion of 
knowledge, that was rendered possible by the inven- 
tion of printing, was not rendered practicable until 
books became so plenty as to be cheap, and instead 
of being published in Latin, were given to the com- 
mon people in their own language. This time came 
to England about three hundred years ago. The 
Elizabethan age was a creative age in literature and 
philosophy, and the English, who planted our first 
colonies, came here under the influence of its inspira- 
tion. Their business was to found governments ; 
their literature was statute law; their gathering- 
place, if not the church, was the court-room or the 
town-meeting. Such men, thrown upon their own 
resources, under new conditions of society, could 
not fail to make a better law for themselves than 
they could find anywhere, whether in use or in 
history. 

The political and commercial differences between 
the English colonies and England, which showed 
themselves as soon as property began to accumulate 
here, and which culminated in our independence, 
kept alive this spirit of free inquiry into the reason 
and causes of thinsfs. 



264 AMERICAN JURISPRUDENCE 

The repellent influences of the Revolution taught 
us to look more to the Continent for our exam- 
ples. Montesquieu's Esprit des Lois, published about 
the middle of the last century, had a profound 
effect throughout America. The same may be said 
of Beccaria's work on Crimes and Punishments, which 
appeared twenty years later. Then came the French 
alliance, and the French ideas that Jefferson and 
Franklin brought home from a long residence abroad. 
And from those days to these, not only have Ameri- 
cans been familiar with what comparative legislation 
has to teach, but they themselves have been growing 
more and more into a new, composite nationality, the 
roots of which strike back into every land whose 
institutions are in sympathy with the spirit of modern 
civilization. 

Our system of jurisprudence has been built up 
during an era of ever-increasing power and prosperity 
— the glad youth of a new race. It has served us 
well thus far. Will it be found equally adapted to 
those other days that are sure to come, when a 
denser population will crowd the land ; when immi- 
gration is discouraged or repelled ; when there are 
no more virgin forests or virgin fields ; when, perhaps, 
added duties of the general government give it a still 
greater weight, relatively to the States? 

So far as we can forecast this future, it may, I 
believe, be our hope and our confidence that the 
forces of universal education, and of universal suf- 
frage, bringing individual responsibility, will keep it 
in healthy and symmetric growth. 



AMERICAN JURISPRUDENCE 265 

The American race has built up an American juris- 
prudence. It knows its value. It will modify it, as 
new conditions arise, but it will never surrender its 
essential characteristics, its spirit of self-reliance, its 
principle of equal, even-handed justice to all. 



CHAPTER VIII 

THE DECADENCE OF THE LEGAL FICTION ^ 

NO student of political science or legal history is 
ignorant of the large part which fictions of 
law have assumed in the development of both. The 
steps of human progress are slow and uneven, and 
those who direct it have often found that the shortest 
way is not the straightest. The legal fiction is the 
invention of a rude people struggling towards the 
light. It comes from rulers who find the existing 
law not sufficiently pliant to serve their purposes. 
They may be kings, or priests, or judges. They may 
be the power behind the throne, the altar, or the 
bench : commonly they are ; and it is to lawyers act- 
ing, not as the court, but as the advisers or officers of 
the court, that most legal fictions now in use owe 
their beginning. 

Law and society are the two forces that produce 
government, and they seldom pull together. One or 
the other is in the advance. One or the other must 
always be in the advance, dragging the other after it, 
as best it may, save under those governments which 
are at the dead level of low-tide or of high-tide. In 
the masterly chapter of his " Ancient Law," in which 
Sir Henry Maine touches this general question, he 

1 In discussing this topic use has been made of an address delivered 
by the author before the Tennessee State Bar Association, on Look- 
out Mountain, in 1884. 



THE LEGAL FICTION 267 

tells us that the gap between them, in the past history 
of progressive nations, has always been filled by the 
agency of three things : Legal Fictions, Equity, and 
Legislation, succeeding each other in that order, the 
roughest first. Not, of course, that development by 
legal fictions stops when equitable principles are first 
adopted, or that equity cannot be embodied in statute 
form. All these devices may be resorted to at the 
same period, and in disposing of the same case; but 
the origin of each is at a different epoch. 

In all English-speaking peoples of our day it is 
society which is ever in the lead ; law which is ever 
holding back — as the conservative force, as the rep- 
resentative of the past. Our race in the past found 
legal fictions so useful in the development of its sys- 
tem of public administration that it multipHed them, 
more rapidly than any other people. Of late it has 
shed them more rapidly than any people. 

That the king can do no wrong was one of them. 
Put in the form of an axiom, it long had the force of 
one, and became almost an article of faith for half of 
England. It did not survive the Stuarts as a national 
belief, but as the expression of a sound maxim of 
national policy, it did, and, as such, is still the founda- 
tion of her system of government by a responsible 
ministry. 

A legal fiction may take the shape of a judicial 
presumption, which it is not permissible to contro- 
vert. Title by prescription or adverse possession 
was originally rested on the assumption that there 
must have been a grant, the evidence of which had 
been lost, of what had been long and peaceably en- 



268 THE DECADENCE OF 

joyed. There are few titles that could be traced far 
back without reliance on this means of support. 
Every one knows that, in fact, there was often no 
grant, but a mere usurpation, — that too often " prop- 
erty is robbery." In many cases it would be possible 
to prove this with absolute certainty; but no such 
proof is allowed. It was excluded, in early times, by 
force of the fiction of a lost grant, because that was 
the easiest mode of satisfying the popular conscience. 
In our day, it is excluded because all men have come 
to agree that it is a necessary rule of public policy 
that long continued and undisturbed possession 
should be defended at all costs. 

Legal procedure in the English courts was long 
disgraced by fictions of mere convenience, sanctioned 
by courts that were anxious to extend their jurisdic- 
tion by indirect or covert means. Many of these 
were copied in America. Writs, judgments, and in- 
dictments were alike full of them. One could not 
sue for the value of an article which had been lent 
and carelessly destroyed, without setting up that it 
had been lost and casually found by the defendant, 
and that he had afterwards converted it to his own 
use. An action to compel the payment of a disputed 
claim could only be maintained upon the statement 
that there had been a promise to pay the money, 
although in fact it was not pretended that such a 
promise was ever made. 

Most of these legal fictions have gradually faded 
out of existence during the last half century. They 
have perished by a biologic law, as applicable to legal 
conceptions as to physical beings. They were in- 



THE LEGAL FICTION 269 

capable of adjustment to their environment in modern 
society. 

Maine has said that " no institution of the primitive 
world is likely to have been preserved to our day, 
unless it has acquired an elasticity foreign to its orig- 
inal nature, through some vivifying legal fiction." ^ 
If this be so, it is also true that no such institution 
can flourish in a civilized community of our day, un- 
less it can throw off its form of fiction, and found it- 
self on solid reasons and sober truth. The " common 
recovery " by which a fictitious suit was so long 
allowed to change the course of succession to landed 
property, was a convenient means of accomplishing a 
desirable end, but its basis of false assumptions made 
it intolerable to modern England, and it gave place 
sixty years ago, by Act of Parliament, to the " disen- 
tailing deed."^ Where a statute can thus perpetuate 
a policy which is found in accordance with the social 
ideas of an age later than that which gave it origin, a 
legal fiction dies like the phoenix, to live again in 
higher form. But that which does not merit the 
sanction of legislation seldom ought to be retained 
by the sufferance of courts. 

A few such still linger as a reproach to American 
law. One may serve to illustrate the rest, and it is 
one to which I particularly desire to direct attention 
in the hope that this may assist in forwarding its ulti- 
mate disappearance. It has served its day, and is 
embedded in our jurisprudence only as the fossil shell 
of a distant age. 

1 Ancient Law, chap. viii. p. 256. 

2 By a statute of 3 & 4 William IV. 



2 70 THE DECADENCE OF 

I refer to insanity as a legal fiction. It bridged the 
way for us, as it did for the Romans, from rude con- 
ditions of society to better ones ; but the bridge is 
passed and nothing is to be risked by burning it 
behind us. 

The significance of human acts is their intent. A 
man really does only what he means to do. It is all 
he can do, and all he can be held, in the forum of con- 
science, responsible for doing. The only absolute 
proof of an absence of intent is by showing an inca- 
pacity of forming it. The sane man may at times 
intentionally do very unreasonable and very wrong 
things. The insane man never can ; because to him 
there is no reason and no wrong. 

What wonder, then, that under a criminal code of 
great severity, yet acknowledging to the fullest extent 
that actus non facit reuni, nisi mens sit re a, the English 
bar should have early resorted to the plea of insanity, 
when there was little to sustain it but the sympathy of 
the jury and the eloquence of the advocate ? What 
wonder that the coroner's inquests of a land where 
suicide doomed a man's family to beggary, and his 
corpse to outrage, should seize upon the same device 
to protect his grave, transparent as the veil might be? 
What wonder that the will that stripped wife and chil- 
dren of their just expectations was by the same make- 
shift set aside in favor of the distribution made by 
law? 

It is no wonder that these precedents are stamped 
deep upon the pages of English law. It was the 
natural and happy expedient by which outgrown 



THE LEGAL FICTION 271 

statutes, that Parliament refused to alter, were for- 
bidden by English judges and English lawyers to 
oppress the innocent. 

But it was still, at best, a pious fraud. It would 
have been unworthy of a people who controlled their 
own legislation. It was the protest of the community 
against statutes that they could not alter and would 
not obey. We have no such excuse for perpetuating 
the era of legal fiction. Our legislatures are the 
quick reflex of public sentiment, too ready to stamp 
with their approval anything that their leaders can 
suggest. 

Has not the time fully come when the American 
lawyer should be relieved from ever claiming insanity 
when he knows that it does not exist? 

Take, first, the case of a hard will, which thrusts 
aside children in favor of strangers, or enriches one 
at the expense of others more deserving but less 
importunate. 

It is no new case. Every will disturbs what the 
law deems the natural course of descent, and many 
wills, from earliest times, among all nations, have dis- 
turbed it unreasonably. What remedy did Rome, 
the great mother of most modern law, have to sug- 
gest? A formal suit, called the complaint of an un- 
dutiful will, which was known in practice at least as 
early as the best days of the republic.^ In this action, 
the contestant did not claim that what was propounded 
as a will was no will, but that it was an unreasonable 
will. 

Rome, too, was originally forced in framing her 

^ Heineccius, Antiq. Rom., lib. ii. tit. 17, § 5- 



2 72 THE DECADENCE OF 

writ to resort to the legal fiction that the remedy 
rested on the ground that the testator's mind could 
not have been well-balanced; but this pretence was 
soon virtually abandoned. 

" The action concerning undutiful wills," says Mar- 
cian,^ " sets up a colorable ground, as if the testator was 
not of sound mind enough to make a will. And this is 
said, not as though he were truly a madman or de- 
mented, for his will he has indeed made well enough 
as a will, but not in accordance with the duty of nat- 
ural affection ; for if he were truly a madman or de- 
mented, there is no will." 

To say that a will was undutiful was to say that 
some one had been improperly disinherited or passed 
over, which, said Marcellus, often happens when par- 
ents act under some false prejudice against their chil- 
dren. You might claim that a will was void, or that 
it had been revoked, or that it was undutiful, but you 
could not make all these claims at the same time. 
Each must be heard and decided by itself.^ The 
legatee who attacked the will as undutiful, and lost 
his case, lost his legacy too, unless he abandoned the 
attack as soon as the defence appeared to be well 
founded.^ 

Nor did Roman law stop here. The legacies which 
could be charged on the executor and residuary lega- 
tee, who was generally the next heir, were restricted 
in amount by a succession of statutes, and finally 
limited, in the time of the early empire, so as never 
to exceed three-quarters of the net estate.* 

1 Digest, V. 2, de inofficioso Testamento, 2. 

2 Dig. V. 2, 12. 8 Dig. V. 2, 14. * Dig. v. 2, 9. 



THE LEGAL FICTION 273 

Similar provisions are to be found in most countries 
of modern Europe, — in most civilized countries of 
the modern world. They were brought into English 
law by the Normans, and remained there until the 
days of Henry VIIL 

" Let the goods of gavelkynd persons," says the 
old Custumal of Kent, also, "be parted into three 
parts, after the funerals and debts paid, if there be 
lawful issue in life ; so that the dead have one part 
and his lawful sons and daughters another part, and 
the wife the third part ; and if there be no lawful issue 
in life, let the dead have one-half and the wife alive 
the other half."i 

No doubt these limitations on the power of bequest 
originated in nations where the family, rather than the 
individual, was the unit of society. But be the polit- 
ical theory of government what it may, we never can 
eradicate family affection and family duty from their 
dominant position among the controlling forces of 
civilization. They must be recognized, and they 
must be protected. The father who causelessly dis- 
inherits a dutiful child commits a wrong which, in 
some way, governments must redress. The Parlia- 
ment of England, in the Statute of Wills, might sweep 
the old way out of the common law, and provide 
no other ; but this simply left it for the people and the 
lawyers of England to devise some new mode of pro- 
tection. They devised the fiction of insanity, and for 
three hundred years they and we have gone on, sol- 
emnly setting aside wills of unreasonable men on the 
pretence that they were insane men. 

1 Crabbe, Hist. Eng. Law, 93. 
18 



274 THE DECADENCE OF 

May it not be wiser to-day to acknowledge that in 
this matter, as in some others, Henry VIII. was 
wrong and the world right? Some of our States 
have already moved in this direction. In many, of 
late years, we find statutes limiting bequests to public 
charities ; in a few, statutes guaranteeing a certain 
portion of the estate to the children, if any there be. 
There will be more such laws as time goes on ; and as 
their legitimate result, there will be less of legal fiction 
in our probate courts. 

Next come a class of cases where the compassion 
of a coroner's jury has been accustomed to hide itself 
behind the verdict of temporary insanity. 

In ancient times we all know that suicide was looked 
on with no unkindly eye. No man, they said, could 
rightly complain that his life was miserable, since he 
had it in his own power at any time to open the door 
and step out of it. That is no prison which one can 
leave at will. The Greek and Roman moralists did 
not, indeed, consider it often a right act. It was 
desertion of the post of duty to which the gods have 
assigned us. It was withdrawing from your country 
the services she had a right to demand. It was cow- 
ardly not to be able to stand up under suffering, how- 
ever heavy the load. 

The State went so far as to punish the act of suicide 
by a criminal with confiscation and with infamy, but 
it was because otherwise he would escape unpunished 
for his original offence.^ The man who killed himself 
from weariness of life, or mortification at being insol- 
vent, or impatience of disease, stood uncondemned. 

1 Dig. xlix. 14, de Jure Fisci, 45, 2. 



THE LEGAL FICTION 275 

No Roman law-giver, no Roman philosopher, ever 
dreamed that suicide was a natural mark of insanity. 
They knew, and we know, that it is too often the fruit 
of long and cool deliberation. It occurs oftenest in 
highly civilized communities. It is not a thing that 
always and instinctively shocks the moral sense. On 
the contrary, apart from considerations founded on 
religion, the question, Is life worth living? is one 
which many a man may hesitate to answer, and as 
to which the man who thinks most deeply and most 
clearly might hesitate longest. It is, no doubt, an 
awful thing to enter unbidden into the presence of 
the Almighty. There is an audacity in it to which 
few are equal. There is a recklessness in it of which 
few will be guilty. But that the fatal act may come 
from an unclouded mind and a steady hand who 
can doubt? Many is the man to-day who would 
willingly let go of life if it could be relinquished 
painlessly to himself and honorably to those left 
behind him, and if he had no hope, no fear of a hfe 
beyond. It would substitute certainty for uncer- 
tainty ; rest for toil, anxiety, apprehension : it would, 
that is, if he were unaffected by the teaching of reve- 
lation, or the instincts of natural religion. The law is 
unaffected by them, and it is a legal question only 
that is now under consideration. 

It was Saint Louis, of France, who first introduced 
the practice of confiscating the estate of every sui- 
cide, which, long since discarded in the country of 
its origin, remains still a disgrace to the statute- 
books of England. It was one of the first acts of 
Tennessee, in her original Constitution, to forbid 



276 THE DECADENCE OF 

such inhumanity to the innocent; nor is it now rec- 
ognized in any American State. This penalty of 
beggary to the deserted family, coupled, until the 
present century, with the refusal of decent burial to 
the corpse, was the sufficient cause for the adoption 
in English practice of the legal fiction of temporary 
insanity. 

The censures of the church, too, involving, when 
Europe was under Roman Catholic auspices, the 
denial of its rites at the grave, or its masses for the 
departed soul, tended strongly in the same direction. 
So did, and so does, the natural horror and disap- 
probation with which suicide is regarded by the 
majority of the community. 

This last reason for calling it by another name is 
the only one that remains with us, — the only one, I 
say, for it includes the censures of religion, though 
not of popes and councils. " Though there are 
many crimes," says Madame de Stael, " of a deeper 
dye than suicide, there is no other by which men 
appear so formally to renounce the protection of 
God." 

I would not relieve the memory of the suicide from 
the reproach of a breach of religious duty, and of 
social obligation. I would give the real, and not the 
conventional reason for his act. Poverty, hopeless 
disease, shame, loss of friends, loss of reputation, 
mere weariness of an empty life ; when these exist, 
why shut your eyes to them and frame a fiction to 
occupy their place? In very charity to the dead 
man's kin, let the truth be told, rather than throw 
on them a still darker shadow. 



THE LEGAL FICTION 277 

The true duty of the coroner in such a case is to 
see to it that the verdict is true. Let pubhc senti- 
ment require him to instruct the jury that the law at 
least does not presume insanity from the fact of sui- 
cide, and that they should not find that to be the 
cause of death, unless satisfied by the surrounding 
circumstances that it really was. 

But the worst form in which this fiction still sur- 
vives is that in which it serves the living as a defence 
in criminal prosecutions. Its legitimate use for this 
purpose is of common occurrence. Its illegitimate 
use, I believe, is still commoner. 

A class of crimes exists in which we always expect 
it; in which it is seldom well founded; in which it 
is generally successful. They are crimes in the eye 
of the law, and not in the eye of the community ; 
crimes of blood and crimes of deep provocation. 
Human honor is held cheaper in law than it is in 
life. It is held cheaper in modern law than it was 
in ancient law. It is held cheaper in English law 
than it is in Continental law. Honor and infamy, — 
honor as the great prize of life, infamy as its heaviest 
burden, — these were great agencies of the legislator 
of the days before the Christian era. 

The doctrine that no words can justify a blow, 
that the mortal stroke that punishes an insult is 
murder, but that violence to property will warrant 
violence to defend it, would have seemed somewhat 
incongruous to a Roman. These are the maxims of 
a pacific people, — of a nation at which Napoleon 
sneered as a nation of shop-keepers, though he found, 



2 78 THE DECADENCE OF 

at last, that when roused they could fight, and could 
conquer. They are maxims also which, however 
just in theory, do not regulate the actual conduct 
in life of Englishmen or Americans. They rest 
upon the plane of religion, rather than of ordinary 
human intercourse. Society may some day reach 
their level, but it has not yet. 

In the practice of courts, they are softened by the 
sympathy of juries, or the good sense of the bench. 

In cases of simple assault, this protection has been 
found enough. Where the punishment of fine or 
imprisonment is in the discretion of the judge, he 
will not fail to make due allowance for the man who 
has been provoked to right his own wrongs in a 
rough way. Even revenge, says Lord Bacon, is but 
a wild sort of justice. 

But in capital cases, we are brought to face a ques- 
tion quite different. Here is no room for the inflic- 
tion of a nominal punishment. The verdict binds 
the court to an invariable sentence. It is a simple 
question between guilt and innocence ; between the 
last penalty the law can exact, and an absolute ac- 
quittal. It is this narrow alternative from which the 
common law allows no escape, which has driven 
the English and American jury to lay hold so often 
of the pretence of emotional insanity. 

A hundred and sixty different capital offences 
blackened the criminal code of England, so late as 
when Blackstone wrote. The ground was strewn 
with dead after the assizes, as it is behind an invad- 
ing army. Parliament refused to mitigate the laws. 
Lawyers and juries were found ready to nullify or 



THE LEGAL FICTION 279 

evade them. So will it always be when laws cease to 
represent justice. The people are stronger than any 
statute. They may be long misrepresented by their 
legislators, but they will not be long thwarted by them. 
The fiction of insanity as a defence in homicide had 
a natural origin in English law. It was the protest of 
the community against rules of decision which failed 
to recognize some of the finer feelings of our nature. 

Our very forms of legal procedure were at once the 
occasion and the opportunity of this practice. We 
are unlike almost every other people in tying our 
juries down to single issues. To this result we 
directed our art of pleading in civil and criminal cases 
alike. The great thing was to give the jury but one 
point to settle, — one question to answer. It is now 
agreed that this system was a failure in civil cases. 
It became, ages ago, one of simplicity and certainty 
in theory only. Successive relaxations in practice 
by slow growth choked the clear spirit of the ancient 
science of pleading till it became a corpse, and have 
driven us to a system radically different. 

But in our criminal procedure we still cling to the 
forms of the days of Alfred. Guilty or Not Guilty — 
this single issue, single in terms, but all embracing 
in scope — is still all that England and America put to 
their juries in the most important causes with which 
the law has to deal. 

The Roman panel, before which the State brought 
its prosecutions, had a third answer open to it, — Non 
liquet, I am not certain. The Scotch jury too can 
say. Not proven. The Continental jury can do more. 
They can, and must, if they fit>d the prisoner guilty, 



28o THE DECADENCE OF 

return written answers to a series of questions, pro- 
posed by the prosecution or the defence, and sanc- 
tioned by the court.^ These questions relate to facts 
evidencing the degree of criminahty involved in the 
commission of the offence. They may tend to 
aggravate it; they may tend to extenuate it. 
In either case, they are to be passed upon separately 
and on due consideration. 

By the present laws of France,^ if circumstances of 
mitigation are found in a capital case, the court may 
reduce the penalty from death to a limited term of 
imprisonment. In the Austrian Code of 1852, we 
find among the extenuating facts which may reduce 
the punishment, the case when the prisoner was 
urged on to the act complained of by violent mental 
excitement, growing out of the ordinary feelings of 
man. Temptation, opportunity, provocation, contri- 
tion, all these things, that, to the common judgment 
of men, give color to an act, and- make one pity or 
condemn, these penal codes bring directly before the 
trier, to aid in ascertaining as to the prisoner's guilt 
and its degree. In a word, all the matters of pallia- 
tion which, under the prevailing American practice, 
have been brought before the court, only after ver- 
dict, to mitigate the sentence, and shown by statements 
of counsel, letters of friends,' or at most by affidavit, 
other nations allow to be proved on the trial, and 
placed on record as a permanent characterization 
of the offence, — as a necessary part of determining 
what that offence is and is not. 

1 See t)ie French Code (T Instruction Crimmelle, Art. 336 et seq. 

2 Law of May 13, 1863. 



THE LEGAL FICTION 281 

Under such a system, I need not say that they 
are ignorant of the plea of temporary insanity. They 
have no need to bring in fictions when they boldly 
accept the fact. The irresistible impulse that leads 
an outraged husband to clear his house of the 
seducer by his instant death, they calmly pronounce 
to be no crime at all.^ The transport of passion 
under which a son may shoot down his father's mur- 
derer, though met years after the deed on some 
distant shore, they declare to be a legal matter of 
excuse. 

Who is there that has not watched the progress 
of some such case on trial in an American court as it 
is photographed by the daily press? A man perhaps 
has avenged his daughter's or his sister's wrongs. 
He has followed the wretch who destroyed his 
happiness, and shot him down as he would a wolf. 
The sympathies of the community, of the audience, 
of the court, are with the prisoner. He has offended 
against the law; but is it a just law? It imposes on 
him the same penalty which it metes out to the 
lowest and basest criminal that defiles the dock. It 
refuses to hear the story of the injuries that drove 
him to revenge ; or if it hears them at all, treats them 
as proof of malice and premeditation. The jury 
must find him simply Guilty or Not Guilty. The 
judge is the mere spokesman of the statute law. 
Some punishment the prisoner deserves, but he must 
receive the most severe, or none. He receives none. 

1 " Code Penal " of France, Art. 324. By English law it is man- 
slaughter ; but men were once branded on the hand for it, by burning. 
T. Raymond's Reports, 212. 



282 THE DECADENCE OF 

The tears of his family, the eloquence of counsel, the 
atmosphere of excitement and pity that pervades the 
court-room and the county, supply the want of proof, 
and the man who was sane the moment before 
the fatal deed, and sane the moment after it, is 
found Not Guilty, on the ground of temporary insan- 
ity. Twelve men have violated their juror's oaths ; 
but they have done it to save a life which the law 
would have unjustly forfeited. 

Which is better, to break a law which is unjust, 
or to make a law which shall be capable of being 
respected? We, of the American people, have it 
in our power to do either. Law is what we please. 
The general adoption of the humane principles of 
foreign codes, as to motives for homicide, would 
go far to drive the fictitious defence of temporary 
insanity out of our court-rooms. Are they not 
more in accordance with the instincts of the human 
heart than those which we have inherited from 
our common law? Are they not, on the whole, safer 
for society? 

It was the great thought of Stoic philosophy that 
all things were ruled by law, — by one law, every- 
where one and the same. Physical science in our 
day has come forward with new and commanding 
proofs of its universality. Let it be the language of 
heaven, or let it be the mere expression of material 
or mortal forces, it is in either case the highest, the 
ultimate conception of the human mind. To apply 
this law to the affairs of men is justice, and those to 
whom it is committed to administer this sacred trust 



THE LEGAL FICTION 283 

should be free to do so in that spirit of sincerity and 
truth which its nature calls for. 

The cycles and epicycles of Ptolemy might serve 
to indicate the laws of planetary space, till the eye of 
Copernicus pierced to the very heavens and saw the 
truth. Five thousand years of human knowledge 
were against it, but, once proved. Science, and The- 
ology, as well, bowed to the discovery, and the earth 
shrank away into a corner of the great universe, of 
which her inhabitants had so long thought her the 
centre and moving cause. A surface reading of holy 
writ had made the Christian church believe that our 
earth, again, was but the six days' work of its great 
Maker. Geology read another story in the silent 
rocks, — dead witnesses of other times, — and a thou- 
sand centuries were added to the pages of history. 
The imperfections of human laws have at least been 
as great as the imperfections of human conceptions 
of cosmogony and of nature. It is the part of the 
modern legislator to be as loyal to truth as is the 
astronomer or the geologist. If any rule of right or 
practice, of those used in our courts of justice, comes 
to be recognized as false, there is but one way open, 
to strike it out, cost what it may of old traditions 
unseated and old ways abandoned. 

For other times, for the rough days of Saxon kings 
and Norman conquerors, of Common Law struggling 
to keep out Canon Law, of peasant juries and royal 
judges, these legal fictions that linger still, may have 
been necessary. But they were ever necessary evils. 
One language alone befits the court of justice — the 
language of truth. If the surrounding society be such 



284 THE DECADENCE OF 

that the truth cannot be comprehended or acted on, 
then indeed it may be permissible and wise to veil 
and disguise it. But such a policy can be only a tem- 
porizing one. If there is real life in that community, 
if its people have the capability of better things, if its 
rulers are leaders, the hour will soon come when 
justice need no longer wear a mask. 

Has not this hour come to the American law- 
maker, as regards, at least, this pitiful fiction which 
we have had under particular consideration? Shall 
we go on for another century acquitting the husband 
who kills the betrayer of his household, on the false 
plea of temporary insanity, instead of the outspoken 
verdict of justifiable homicide? Shall we go on for 
another century listening to the same empty lie from 
every coroner's inquest that sits on the body of a 
suicide? Shall we go on for another century setting 
aside hard wills on the plea of testamentary incapa- 
city, instead of protecting heirs by law, against a 
father's mere caprice or injustice? 

We cannot say that our people are too ignorant to 
be trusted with the truth for their own good. It is 
the people who are laughing at their courts and law- 
yers for an ignorant and slavish adherence to prece- 
dents of former and ruder generations. America, 
that has taught all other lands the duty and the 
blessings of popular education, need not distrust the 
juries whom she has trained up in her own free 
schools. If there be an American citizen whom any 
State could ever put in her jury-box, too blind to see 
through these legal fictions of ancient time, that State 
has a worse enemy to contend with than legal fictions ; 



THE LEGAL FICTION 285 

she must be the victim of legal facts, — of bad laws 
of administrative justice. 

It is with a just pride that we look back on a 
thousand years of Anglo-Saxon life — its sturdy 
growth, its glorious expansion, its rugged self- 
reliance. Old England is dear to us still as our 
fatherland : — 

" A land of just and old renown, 
A land of settled government, 
Where freedom broadens slowly down, 
From precedent to precedent." 

But precedents may mislead. They do if they run 
counter to the general sentiment of an educated com- 
munity in a Christian land. In matters political our 
race has never allowed legal fictions to stand long 
in its way. The oldest of all, that " the king can 
do no wrong," was invoked in vain by Charles I., as 
he stood before his judges at Westminster; and by 
George III., when he undertook to tax the American 
Colonies. 

But in questions of mere judicial practice, we have 
been ever slow to depart from the ancient ways. 

No fault need be found with this spirit of conserva- 
tism. It has given us, and guaranteed us, the free- 
dom we enjoy. No new-made law can have half 
the hold upon the community, can exercise half the 
power over men, which belongs of right to settled 
rule and ancient precedent. We have grown up 
with and into this notion of fictitious insanity. It 
is part of our criminal jurisprudence, and probate 



286 THE DECADENCE OF 

law, as well settled and familiar as any other. It 
ought not to be uprooted without strong cause. But 
is it not true that strong cause exists? All these 
fictions were once useful ; we can see where. They 
are now outgrown ; we can see how. Often they 
stand in the way of a manly declaration of the truth, 
in matters of judicial procedure, and they alone stand 
in the way of it. 

The term legal fiction has been sometimes defined, 
and was by D'Aguesseau, so as to exclude whatever 
it is impossible should be true. The ordinary use 
of the term is more extensive. It embraces what 
is obviously untrue, as in the maxim that the king 
never dies, or that a will speaks from the death 
of the testator. Thus employed, it is a convenient 
figure of speech, — a bit of picture writing. It is no 
more than a correct statement in proverbial form 
of a legal fact. 

Such fictions may well continue a part of any 
system of jurisprudence. It is those which assert 
what might be true, but is known not to be, that 
are falling into desuetude, and deserve to fall. 

Conservatism is the peculiar characteristic of the 
Anglo-Saxon race in everything that belongs to law 
in government. But there may be a conservatism 
of forces, without a conservatism of forms. We are 
the heirs of strong natural traits, tendencies, aspira- 
tions. We prize the results they have attained for 
English law and English liberty. We prize more 
the high aim, the free spirit, the loyal soul, of which 



THE LEGAL FICTION 287 

these results have been, after all, but an imperfect 
expression. 

That people best honors its great progenitors 
that stands above them, on a higher plane of life 
and thought and law, gained by following out their 
principles of action in a better way; by standing 
on their foundation; not to stand still, but to step 
higher. 

The statute law of an historic race, which has once 
attained any considerable civilization, should be a 
pyramid. The base will be broad, — too broad for 
anything except a base. It will be built of the 
customs of many ages crystallized into positive law, 
lying confusedly together, except as at the points of 
greatest advancement they may face the structure 
with what rises to the dignity of institutions. Each 
higher course will be a smaller square, because from 
each will be rejected that which has been found 
unnecessary. 

The best statutes, says Mr. Buckle, are those that 
repeal some former statute. And why? Because 
under and around every system of legislation, like 
the free air of the desert that embraces the pyramids 
themselves, is the great sustaining presence of that 
unwritten law which every people makes for itself, 
and changes for itself, as time goes on. To this law 
they are remitted by the repeal of statutes, and it 
is a law seldom other than equal and just. 

What says this unwritten law, as to the succession 
to the estates of the dead? That its natural course 
is descent to the next of kin. What says the statute 
law? That this course may be varied at the pleasure 



2 88 THE DECADENCE OF 

of the dead, if they leave a paper which we call their 
will. Repeal this statute and you remit the succes- 
sion to the rightful heirs. Repeal it, in part, as 
by providing that they cannot, without just cause, 
be wholly disinherited, and you remit them, for that 
part, to the protection of the customary law. Is 
it said that this would be to establish a restriction 
upon the power of bequest, left untrammelled by the 
wisdom of former generations? Who have the op- 
portunity to know best the wants of the present age, 
they or we? 

In Bacon's Novum Organum are some words in re- 
gard to the wisdom of our ancestors which are as true 
for our time as they were for his. Reverence for an- 
tiquity, he says, is often founded on a mere misappli- 
cation of terms. The old world was not antiquity. 
That was a younger world than ours. In its relation 
to our times, it was old. In its relation to all times, 
it was young. As we look for better judgment in the 
man of experience than in the youth, so far more is 
to be expected from our age than from former ones, 
for it has had greater opportunities of knowledge.^ 

1 Lib. i. Ixxxiv. 37 : " De antiquitate autem opinio, quam homines 
de ipsa fovent, negligens omttino est, et vix verba ipsi congrua. 
Mundi enim senium et grandcBvitas pro antiqtntate vere habenda sunt ; 
qucE temporibus nostris tribui debent, non junior i cetati mundi, qualis 
apud antiquos fuit. Ilia enim cBtas, respectu nostri, antiqua et major ; 
respectu mundi ipsius, nova et minor fuit. Atque revera quemadmodum 
majorem rerum hu77ianarum notitiam, et maturiiis judiciimi, ab homine 
sene expectamus , quam a juvene, propter experientia??i, et rerum, quas 
vidit, et audivit, et cogitavit, varietatem et copiam ; eodem mode et a nos- 
tra (State (si vires suas nosset, et experiri et intendere vellet) majora 
multo quam, a priscis teviporibus, expectari par est ; utpote estate mundi 
grandiore, et infinitis experimentis et observationibiis aucta et cumulata." 



THE LEGAL FICTION 289 

The nineteenth century closes as an age of light, 
of truth, of sincere investigation, of candid judgment. 
It is intolerant of shams. It needs none. Least of 
all does it want them in its courts of justice. Surely, 
before that high presence, where we poor mortals in- 
voke the aid of the God above us to keep our testi- 
mony pure, our judgments right, we may say with 
George Herbert — 

" Dare to be true : nothine can need a lie." 



19 



CHAPTER IX 

THE RECOGNITION OF HABITUAL CRIMINALS AS A 
CLASS TO BE TREATED BY ITSELF^ 

THE last quarter of the nineteenth century has 
witnessed the development of a new science, — 
that of Criminal Anthropology. It deals especially 
with the relation of crime to the criminal, and seeks 
to discover what were the causes which have made 
him what he is, and what regard society should pay 
to those causes in determining what to do with him. 
Since the publication of Professor Lombroso's Luoino 
delinquente, in 1876, a considerable literature regard- 
ing this subject has come into existence, and one to 
which there have been contributions in many lan- 
guages. The fundamental proposition which he has 
brought forward is that he who commits a crime 
commits it in consequence of a peculiar constitution 
of mind and body, acted upon by his physical and 
social surroundings. This seems almost a common- 
place, but there are many anthropologists who con- 
tend that the environment is the sole responsible 
cause, and others by whom peculiarities of bodily 
conformation, race instinct, or climatic conditions are 
denied to have any determining influence at all. 

^ In discussing this topic use has been made of a paper read by the 
author before the American Social Science Association, in 1886. 



HABITUAL CRIMINALS 291 

Fortunately for Lombroso, his views were soon re- 
inforced by proofs of a convincing character. In 
1 88 1, Alphonse Bertillon made pubHc his new method 
of personal identification. 

There are practically no changes of dimension in 
the bones or ears of the human body after it once 
attains its full stature. In no two skeletons do the 
bones have precisely the same relative dimensions to 
each other. These relative variations are particularly 
noticeable in the length and width of the skull, the 
length of the middle and little fingers, foot and fore- 
arm, and the stretch of the arms as compared with 
the height. 

Bertillon asserted that if these and certain other 
dimensions were accurately taken in the case of any 
individual, and supplemented by photographs, a sci- 
entific analysis and description of the features of the 
face and an anatomical localization of all permanent 
scars, marks, or bodily deformities, he could be identi- 
fied with certainty after any lapse of years or change 
of circumstances. While serviceable for many pur- 
poses, it is obvious that the principal utility of this 
method of " anthropometric identification," as it is 
termed, must be in its application to those arrested 
on a criminal charge. The system was put into use at 
Paris by the prefecture of police, in 1882, and soon 
spread over France, Belgium, Switzerland, and Russia. 
More recently it has been introduced into the English 
prisons. 

At the Columbian Exposition at Chicago in 1893, 
the French exhibits, by which it was illustrated, went 
far towards convincing the American public that 



292 RECOGNITION OF HABITUAL CRIMINALS 

Criminal Anthropology had fairly gained the rank of 
a science. 

It was the least of the lessons taught by an exami- 
nation of the photographs and files of measurements 
and descriptions, that escaping criminals, if they had 
been once convicted in any court or country could be 
infallibly identified, if arrested in another. They es- 
tablished the existence of a class of men, of peculiar 
physical characteristics, and facial expression, the 
members of which seemed formed to gravitate to- 
wards crime. In the contour of the skull and the 
great reach of the outstretched arms as compared 
with the height, many of them bore a striking resem- 
blance to the ape or " simian " family, out of which 
it may be that man originally emerged. In most 
there was a want of symmetry and due proportion as to 
the features of the face, as well as the larger members 
of the body. Those in whom these abnormal char- 
acteristics were most marked generally had the worst 
record.-^ They were the old offenders or " recidi- 
vists." They constituted a class within a class, — that 
of the habitual criminals. If one coming into the 
world fashioned in such a shape, unless he be reared 
and educated with exceptional care and success, be 
placed in circumstances of want, an opportunity to 
satisfy it at the expense of another, will not go 
unimproved. 

The philosophy of Lombroso, and the invention 

1 A French physician, as early as 1841, had called attention to 
many of these facts, as disclosed by a study of the convicts in the gal- 
leys at Toulon. Lauvergne, on Les Formats, consideres sous le Rap- 
port physiologique, moral, et intellectuel, pp. 43, 199, 279. 



AS A CLASS TO BE TREATED BY ITSELF 293 

of Bertillon, came in good time to serve the interests 
of American society. Crime with us has become of 
late years to assume a new aspect. Our population 
has begun in more than one State to press upon the 
limits of subsistence. It is less easy than it once was 
for every man to find work at wages which satisfy 
his wants. It is more easy than it once was to gain 
a living by burglary and theft, roguery and fraud. It 
is more easy for the successful sharper, robber, or 
counterfeiter to find a way to spend his ill-gotten 
gains without attracting any more attention than he 
desires to their possession. Such men have come 
to have a social circle of their own ; a certain pride 
in their profession ; a following of respectful ad- 
mirers; a Police Gazette literature to proclaim their 
exploits and perpetuate their kind. 

We have been slow to recognize the existence of 
this class among us, and we have been slower in 
applying the remedy. But as no considerable city 
is now without them, and no village bank or store is 
secure against its forays, it is full time for every State 
to do what but a few thus far have done, and settle 
on some general plan of dealing with criminals of 
this description. 

They are mainly the off"spring of city life ; their 
crimes are directed against property; their line of 
action is craft rather than violence, — violence only 
when craft fails. 

Cities are transforming American society. They 
crowd the good and the bad of vast districts into a 
single centre, where, if the good become better, the 
bad become worse. We are repeating the history of 



294 RECOGNITION OF HABITUAL CRIMINALS 

ancient times and of the dark ages, though from a 
different cause. Not now for safety, but for pleasure 
and for gain, our people are deserting the country 
hill-sides for the manufacturing village or the more 
distant city. Political influence, industrial enterprise, 
capital accumulated elsewhere, go with them. If you 
would find the daring, venturesome, restless, ambi- 
tious spirits, such as were first in earlier days in 
pushing on the frontiers of civilization, you look for 
them on pavements rather than on farms. They go 
where there is not honest work enough for all, and 
so some take to what is dishonest. They take to it 
with the energy and skill that belong to the Amer- 
ican character, with the intensity of purpose that 
marks the struggle of city life. It is thus that crime, 
if it fastens on some man who is ready to receive it, 
becomes a profession; that children are bred to it; 
that it has its own language, — its own tools. 

In every country where modern institutions pre- 
vail, the same movement is to be seen. The great 
cities of England and Germany have been becoming 
greater during the last thirty years, with almost, if 
not quite, the rapidity of Chicago and New York. 

And with what weapons has American society 
been opposing these new criminal classes? With 
none but those forged in the early days of English 
history, — in the days of another type of civilization. 
She has, to meet the Springfield rifle and the Gat- 
ling gun, nothing still but the old pike and shield of 
the middle ages. She has even less. The humanity 
of our times has given the man accused of crime 
rights of defence undreamt of by the common law, 
and has thrown aside half its punishments. 



AS A CLASS TO BE TREATED BY ITSELF 295 

The laws of England regulating criminal proceed- 
ings, which we have inherited, were good for the 
times and the men whose work they were. In a 
land of headstrong kings and feudal lords, the com- 
mon people had scant justice at the best. They 
needed all the guarantees of personal liberty which 
they could get. There was often little guilt in acts 
for which capital punishment was imposed by Act 
of Parliament. Crime was not without its romantic 
side. There might be a certain dash of chivalry in 
the freebooter of the Border, or a Robin Hood of 
the Great Forest. We shall find none in the city 
burglar of the nineteenth or the twentieth century. 

The professional criminal of modern times is a 
product of a highly civilized society. He is armed 
with its arts. He must be met with the best means 
it has at its command. He hides himself in the 
crowds of great cities from the neighborhood watch 
which follows every individual in a thinly settled 
community, — which kept England safe in the days 
when every Hundred was responsible for its own 
good order. Society, then, must set a watch over 
him of some new kind; if there is likely to be none 
without law, there must be one by law. The habitual 
criminal is a perpetual well-spring of crime. The 
stream must be checked at its source, if it is to be 
checked at all. 

It may be necessary to treat him in a manner in- 
compatible with the traditions of our race. We may 
be forced to trench upon his personal independence. 
The time may come, even, for us to make suspicion 



296 RECOGNITION OF HABITUAL CRIMINALS 

evidence, and assume guilt where we cannot prove it. 
If so, the price is a great one, but the peace of society 
is worth it. 

It is a rule of biology, to which I had occasion to 
refer in a previous chapter, that, in the natural order 
of the universe, a being disappears who cannot live in 
unison with his surroundings. The habitual criminal 
is such a being. He is habitually inclined to do and 
apt to do that which is forbidden by the general voice 
and sentiment of the political community in which 
he resides. He does not belong where he is found. 

A sharp and efficient remedy was applied in ruder 
times. His first crime was apt to be his last. Before 
he had had time to harden into a criminal by trade, 
he was summarily put out of harm's way forever, by 
private vengeance or public execution ; or disabled 
from future mischief by bodily mutilation, or else 
made to carry always a warning of what he was by 
marking him with some ineffaceable sign of igno- 
miny. 

The softening influences of Christian civilization 
have taught us to discard most of the penalties which 
criminal justice formerly imposed. The whipping- 
post, whether wisely or unwisely, has almost every- 
where been abandoned,-' and except for a steadily 
diminishing number of crimes called capital, the only 
sentences left to be imposed are those of fine or of 
imprisonment. 

A fine is a slight penalty to the habitual criminal. 

1 A French convict, quoted by Lauvergne {Les Formats, etc. 
316), when sentenced to fifty lashes said : " Mais c'est plus doulou- 
reux que cinquante coups de guillotine ; on souffre pendant et apres." 



AS A CLASS TO BE TREATED BY ITSELF 297 

If he can pay it, he at once returns to the society 
where he is out of place ; if he is too poor for that, 
it is at most but equivalent to a term in jail. 

The subject is one which was not overlooked by 
our first great American writer on systematic crim- 
inal procedure, Edward Livingston. In his " Code 
of Crimes and Punishments," reported to the legis- 
lature of Louisiana in 1824, we find a provision for 
an increased punishment in all cases on a second 
conviction, followed by this article : — 

"Alt. 53. And if any person, having been twice pre- 
viously convicted of crimes, no matter of what nature, shall 
a third time be convicted of any crime afterwards committed, 
he shall be considered as unfit for society, and be impris- 
oned at hard labor for life." 

Mr. Livingston was almost a sentimentalist in his 
views of penology. He would have abolished cap- 
ital punishment, and the foundation-stone of his whole 
system is the proposition that " the sole object of 
punishment is to prevent the commission of crime." 
In the Reports accompanying his code he argued at 
length all points that seemed to him worthy of dis- 
cussion, yet his only allusion to the life-sentence for 
the habitual criminal is the remark that it " seems so 
necessary and reasonable that it may pass without 
observation." 

So far as I am aware, Virginia was the first of our 
States to adopt the plan thus proposed. In her code, 
framed shortly before the Civil War, she declared that 
every person sentenced to the penitentiary must be 



298 RECOGNITION OF HABITUAL CRIMINALS 

sentenced for life, if he had before been twice sen- 
tenced to the penitentiary by any court held within 
the United States.^ 

In Maine a similar punishment may be imposed for 
a second conviction. The provision is, that any per- 
son convicted of a State's prison offence, who has 
been previously sentenced to the State's prison by 
any court of the United States, or any State, may be 
imprisoned for life or any term of years/"' It will be 
observed that this statute is permissive ; not, like the 
others, mandatory. The court may, but is not bound 
to inflict the life-sentence. And, on the other hand, 
Maine requires but two convictions to justify this 
remedy, while Livingston's code and that of Virginia 
demand three. 

In 1885, Ohio followed the lead of Virginia, but 
tempered the sentence by giving a chance of regain- 
ing a qualified liberty. Her statute reads thus: — 

" Every person who, after having been twice convicted, 
sentenced and imprisoned in some penal institution for 
felony, whether committed heretofore or hereafter, and 
whether committed in this State or elsewhere within the 
limits of the United States of America, shall be convicted, 
sentenced, and imprisoned in the Ohio penitentiary for 
felony, hereafter committed, shall be deemed and taken to 
be an habitual criminal, and on the expiration of the term 
for which he shall be so sentenced, he shall not be dis- 
charged from imprisonment in the penitentiary, but shall be 
detained therein, for and during his natural life, unless par- 
doned by the Governor, and the liability to be so detained 

1 Virginia Code of i860, p. 814, sec. 26. 

2 Maine Revised Statutes of 1871, p. 891, sec. 3. 



AS A CLASS TO BE TREATED BY ITSELF 299 

shall be and constitute a part of every sentence to imprison- 
ment in the penitentiary ; provided, however, that after the 
expiration of the term for which he was so sentenced, he 
may, in the discretion of the board of managers, be allowed 
to go upon parole outside of the buildings and enclosures, 
but to remain, while on parole, in the legal custody and 
under the control of said board, and subject at any time to 
be taken back within the inclosure of said institution ; and 
the power is hereby conferred upon said board to estabUsh 
rules and regulations, under which such habitual criminals 
who are prisoners may so go out upon parole, and full 
power to enforce such rules and regulations, and to retake 
and re-imprison any such convict so going out on parole, 
is hereby conferred upon said board, whose written order, 
certified by its secretary, shall be sufficient warrant to author- 
ize any police officer to return to actual custody any such 
conditionally released or paroled prisoner." ^ 

We observe here, as an alternative of the life- 
sentence, or rather as a provisional and temporary- 
substitute for it, something like the English ticket-of- 
leave system. The board of managers of the peni- 
tentiary have the powers which the Act of 16 & 17 
Vict. ch. 99, sections 9-1 1, gave in 1853 to the State 
Department. The convict may be put under watch 
outside the prison, instead of within it, — under the 
watch of the police, instead of the jailer. This is a 
necessary incident of the power to establish rules for 
his control, after his provisional liberation. 

In 1882, the American Bar Association instructed its 
committee on jurisprudence and law reform to " re- 

1 Ohio Session Laws for 1885, p. 237, sec. 2. 



300 RECOGNITION OF HABITUAL CRIMINALS 

port a proper method and criterion, for discriminat- 
ing between professional and non-professional crimi- 
nals, and for the protection of society against the 
former, when so ascertained." Such a report was 
presented to the Association in 1885, and the follow- 
ing resolutions recommended for adoption: — 

" I. Resolved, That provision should be made by law in 
every State, for keeping a record of the name, age, personal 
appearance, residence, occupation, and general antecedents 
of every person who may be convicted in its courts of 
felony, or who may have been twice sentenced to imprison- 
ment for any crime or misdemeanor ; and for printing such 
records annually, for distribution to its courts and police 
authorities, and for exchange for similar publications of 
other States ; and that photographs of convicts deemed 
specially dangerous should also be taken, to be used in a 
similar manner. 

" 2. Resolved, That provision should be made by law in 
every State, for subjecting all persons who have been twice 
sentenced to imprisonment for any crime or misdemeanor, 
to police supervision for life, or such shorter term, not less 
than five years after the expiration of their second term of 
imprisonment, as the court may order; and also to per- 
petual deprivation of the right to vote or hold public 
office." 

This report was the subject of full discussion, and 
at the succeeding annual meeting, in 1886, the reso- 
lutions were adopted. Since then, legislation similar 
in many respects to that of Ohio has been had in 
Massachusetts, Connecticut, Rhode Island, and Utah, 
and the Bertillon system has been adopted by the 



AS A CLASS TO BE TREATED BY ITSELF 301 

police authorities in Illinois, Michigan, Wisconsin, 
Massachusetts, Rhode Island, and New York city. 
In some of the States mentioned Livingston's rule is 
followed, and a third conviction of felony deemed 
absolute proof that the offender is incorrigible, his 
sentence being to confinement for life, with no hope 
of release on parole, however he may subsequently 
seem to have become reformed.^ 

These statutes and the course of legislation recom- 
mended by the American Bar Association both rest 
on the assumption that habitual criminals are an espe- 
cially dangerous class, against which it is proper to 
guard by unusual laws. They agree, also, in making 
repeated convictions the criterion for determining the 
members of this class. The plan of the Bar Associa- 
tion differs from that of most of the statutes in impos- 
ing a liability to police supervision after a second 
sentence to imprisonment, even for simple misde- 
meanors, has been served out. It also differs in 
emphasizing the necessity of instituting in every 
State an exact system of registration for convicted 
criminals, to be made useful throughout the coun- 
try, by suitable arrangements for exchange of 
information. 

This first became possible through the invention of 
Bertillon. 

The line of policy upon which a few of the States 
have thus tentatively entered, and which has the 
support of the only body which assumes to represent 
the lawyers of the country, is not a novel one. It 

1 Connecticut, after first extending the benefit of the parole to this 
class (Gen. Stat., § 1644), withdrew it in 1897. 



302 RECOGNITION OF HABITUAL CRIMINALS 

applies to habitual criminals rules which the leading 
nations of the world have long applied not only to 
them, but to those generally who have committed 
grave, though single crimes. 

It may be said that its spirit is un-American. It is. 
During most of our history we were content, when 
a convict's term of imprisonment ended and we saw 
him pass out of the jail door, to say with Dogberry, 
" Thank God, we are well rid of the knave." But 
we found, as our prisons improved, and the stocks 
and the whipping-post disappeared, that he generally 
came back. Then Prisoners' Aid Societies were tried, 
which are really a form of supervision by the execu- 
tive agent of a charitable organization, though with 
the immediate design of supplying good influences 
and help to find work, rather than of watching 
against new crime. The State, in some instances, 
has contributed to the support of these organiza- 
tions, and their supervision has then become, in 
a measure, that of a public officer, but in a measure 
only. 

We have tried, too, Lynch-law, very vigorously. 
It is effectual against horse-thieves and stage-robbers 
in new States. It is a thoroughly American remedy. 
It aims, in a rough way, at the same end that Eng- 
land aimed at by law when our ancestors left it, — 
the extermination by death of the flagrant criminal, 
before he has an opportunity to become an habitual 
one. But its existence, even in the South, where the 
conditions of society, so exceptional as respects 
temptation and opportunity for one crime, would 
excuse it, if anywhere, is a national disgrace. 



AS A CLASS TO BE TREATED BY ITSELF 303 

We cannot return to the severity of our early codes. 
We cannot tolerate the swift vengeance that antici- 
pates the law or goes beyond it. Those who have 
studied the course of Prisoners' Aid Societies know 
how little they can do to make honest men of rogues. 
Their watch over the discharged convict who ac- 
cepts their good offices is of value, so far as it goes, 
but it cannot go as far as if maintained or seconded, 
as in European fashion, by the police. 

The Penal Code ^ of France put every convict 
sentenced to imprisonment at hard labor, or for 
long terms, under police supervision for life. Before 
his discharge he had to declare where he wished 
to reside. The government might grant his wish, 
or might refuse it, in which case he must select 
another place for its approbation. He received 
a sort of passport to the place appointed, specifying 
how long he might take for the journey, and what 
stops he might make on the way. Within twenty- 
four hours from his arrival he had to report to the 
mayor of the place, and he could not leave it with- 
out a new passport, after three days' notice. Five 
years' imprisonment might be the punishment of 
any infraction of these rules. Those twice convicted 
of petty offences might be put under similar super- 
vision for from five to ten years. In 1885 ^ there 
was substituted for these provisions a system of trans- 
portation for all habitual criminals. 

The general registration law of France, also, as- 
signs every man a legal domicile, which he can 
only change by a formal notification to the public 

1 Art. II, 44 et seq. 2 Law of May 27. 



304 RECOGNITION OF HABITUAL CRIMINALS 

authorities, and where the main events of his hfe are 
recorded. 

In England,^ on a second conviction of one pre- 
viously sentenced to imprisonment for the same 
offence, the criminal may be put under police super- 
vision for seven years, after the expiration of his 
second term. And though not sentenced to such 
supervision, yet if within seven years after his second 
term, any proper court finds reasonable grounds for 
believing that he is getting his living by dishonest 
means, or " if he is found in any place, whether 
public or private, under such circumstances as to 
satisfy the Court that he was about to commit, or 
aid in the commission of, any offence punishable 
on indictment or summary conviction; " or if he 
be found in any house, shop, or yard, " without 
being able to account to the satisfaction of the Court, 
before whom he is brought, for his being found on 
said premises," he may be sentenced, without further 
evidence, to a year's imprisonment. 

This system of police supervision obviously cannot 
be made fully effective here, without exacter methods 
than we have yet pursued for the registration and 
description of known criminals. The photograph 
gives a cheap and easy, though far from certain, way 
of identifying them, and it has come into general 
use in the police offices of our larger cities, without 
any authority of law. A " rogues' gallery" of photo- 
graphic portraits ought to be found in every State 
prison, and a sufficient number of each likeness 
1 By Act of 1871 (34 & 35 Vict., ch. 112). 



AS A CLASS TO BE TREATED BY ITSELF 305 

should be printed, in case of habitual criminals, to 
distribute in all the great centres of population in 
the United States. England, in 1876 (39 & 40 
Vict., ch. 23), formally adopted this policy. The 
State department is to fix from time to time the 
classes of convicts to which it shall apply, and each 
member of every such class shall be photographed 
in any style of dress the authorities may prescribe. 
A record is also to be made of his name, age, personal 
description, offence, occupation, residence, etc., and 
the information thus gained is tabulated, and regis- 
tered in London for English, in Edinburgh for 
Scotch, and in Dublin for Irish convicts. The result 
has been that while at the date of the adoption 
of this system the average number confined in British 
prisons every day in the year was over twenty thou- 
sand, it fell to less than thirteen thousand four 
hundred in 1893, and it is generally agreed that 
there has been a reduction of crime to the ex- 
tent of twenty-five per cent during this period, 
without counting the very considerable increase of 
population.^ 

If similar records were kept in each of our States, 
and printed for exchange with other States, as well as 
for use by its own local authorities, a long step would 
be taken towards suppressing the habitual criminal, 
who now finds it easy to flit, under an alias, beyond 
the shadow of his local reputation, without going 
farther than the State line. Massachusetts has made 
provision for gathering information of this general 

1 Report of the United States Delegates to the Fifth International 
Prison Congress, 91. 



3o6 RECOGNITION OF HABITUAL CRIMINALS 

character, as part of her " probation officer " system 
in regard to all persons arrested for every offence ; 
but it is not gathered for dissemination and has no 
relation to the mischief now under consideration. It 
looks to probation in lieu of imprisonment, not after 
and in addition to it. 

It is my belief that the best way to deal with the 
habitual criminal lies in the direction suggested by 
the American Bar Association. Let there be a full 
record kept under the Bertillon system of the 
description and general history of every convicted 
felon, and of every man twice sentenced to imprison- 
ment for any offence. These should be made avail- 
able for the information of the public authorities of 
every State. Put all persons twice sentenced to 
imprisonment for any offence under police super- 
vision for life, or such shorter term as the court may 
fix. Let them also be forever deprived of the right 
to vote or hold office. 

The habitual criminal is not likely ever to hold 
public office, but he ought not to vote for those who 
do. A single conviction of felony, and a second 
conviction for any offence for which imprisonment 
has been inflicted, also indicate generally a deprava- 
tion of character which should work a forfeiture of 
the elective franchise. In exceptional cases this may 
be too great a penalty. For such, there is an ade- 
quate remedy by a resort to executive pardon, or 
legislative clemency. But in ninety-nine cases out 
of a hundred, the forfeiture is right, and the great 
interests of society demand its exaction. 



AS A CLASS TO BE TREATED BY ITSELF 307 

In several of our States, constitutional or legislative 
provisions disqualify from voting or from holding 
office those who come from other States, where they 
had been disqualified by conviction for crime. Such 
an exclusion evinces a spirit of comity which, it 
would seem, should be universal, in respect to 
offences involving moral turpitude, and which are 
regarded by each of the States concerned as equally 
criminal.^ 

It is not altogether creditable to the United States 
that we have thus far made so limited a use of this 
mode of punishment. It was familiar to the ancients : 
it is familiar to every nation in Europe. For all 
grave crimes and for many minor ones the French 
Code imposes it.^ Italy and Belgium do the same. 
Germany, Holland, and Sweden allow the courts to 
impose it, in their discretion, within certain limits. 
" Civic degradation " for habitual criminals seems the 
natural badge of their condition ; and it is a badge, 
in our land of frequent and close-fought elections, 
which is sure to attract public attention, and there- 
fore to put the public on their guard. 

While few would object to the other requirements 
of registration, photographing, and police super- 
vision, in the case of the hardened and professional 
criminal, they may be thought by some to be harsh 
measures to apply upon a first conviction for felony, 
or a second sentence to jail for any offence. 

But we must try to prevent any one from becoming 
a habitual criminal. The convicted felon has gone a 

1 See Code of Georgia, Rev. of 1882, § 129. 

2 Code Penal, Art. 28, 34; Law of February 2d, 1852. 



3o8 RECOGNITION OF HABITUAL CRIMINALS 

long way towards joining their ranks. He has 
attacked the good order of society with violence 
and effect. He ought not to complain if the State 
makes a full record of the affair, and gives it to the 
police of his country. And is it too much to keep 
under police supervision those who have been twice 
imprisoned, though only for a misdemeanor? Who 
is there familiar with jails who does not know that 
the cases are rare when two such sentences are not 
rapidly followed by a third, and a fourth? For their 
own sake, such men need to feel that the eye of the 
police is upon them. To know that they are watched 
is a real terror and a real deterrent to evil-doers. The 
common punishment for petty offences is a fine. If 
imprisonment is imposed, it is a pretty sure sign of 
some circumstance of aggravation ; if it is imposed 
twice, though only for drunkenness or assault, it indi- 
cates a very bad opinion of the prisoner by the court. 
The term " police supervision " also is an elastic 
one. It would mean one thing for the professional 
bank-robber, and another thing for the twice con- 
victed chicken-thief. From the hardened felon who 
expects to make his living by acts of violence or 
fraud, it might require monthly reports of his occupa- 
tion, instant notice of a change of residence, and 
submission to frequent domiciliary visits of inspec- 
tion. To the man who although twice imprisoned 
for minor offences, follows some regular business, 
and has not irrevocably lost his good name, it might 
take no formal shape, beyond keeping up the record 
of his life in the police register, from such information 
as could be obtained from outside sources, without 



AS A CLASS TO BE TREATED BY ITSELF 309 

giving him any personal annoyance, or attracting any 
public attention to his history. 

A man who is known to the police to belong to 
the class of habitual criminals, who is publicly regis- 
tered as such, and has twice served out a term in 
prison, has but a poor chance, no doubt, of gaining 
an honest living. But no man is wholly bad, and the 
poorest chance is better than none. 

It will be both for his interest, and that of the 
State where his crimes were committed, to better his 
prospects by removal to new scenes. But if the State 
assumes the responsibility of his release and the 
possibility of his removal, she ought to give those 
among whom he may go the means of knowing 
what he has been. The registration of these crimi- 
nals in one State would do little except drive them to 
some other, unless each State which desires it can 
have the benefit of the registers kept elsewhere. 
When France adopted the Bertillon system, there 
was a general exodus of the habitual criminals to the 
next rich French-speaking country, — Belgium. Bel- 
gium then put it into use against them, and they 
began to migrate to Switzerland. The Swiss armed 
themselves in the same way, and with the same suc- 
cess. The whole class, as door after door was thus 
closed against those who belonged to it, was lessened 
as well as scattered. 

An exchange system in the United States between 
the public authorities of the different States, under 
which the records of each are made accessible to all, 
would be an easy matter to arrange. For many 
years, the " rogues' gallery " of photographs in the 



310 RECOGNITION OF HABITUAL CRIMINALS 

city of New York, and the police record that accom- 
panied them, begun without the requirements of law, 
were, by the courtesy of her authorities, often the 
means of following and identifying the criminals who 
had gone into other jurisdictions. Each State might, 
at slight expense, publish annually descriptive regis- 
ters of all its habitual misdemeanants, proved such 
by a second conviction ; send copies to the authorities 
of every considerable place within its limits, and to 
each of its criminal tribunals; and exchange others 
with any or all of its sister States. Each name would 
have its number, and in the graver cases at least photo- 
graphs should be taken, and copies furnished to any 
public officer on payment of the necessary expense. 

It would be also desirable to have a sort of clear- 
ing house at Washington to which all the States 
should report, and where each could gain early in- 
formation as to the last advices from any convict of 
the dangerous class. This was one of the recom- 
mendations made to the Department of State by the 
delegates to the Fifth International Prison Congress 
held at Paris in 1895. In their official report it is 
thus mentioned : — 

"As an efficient agent for the repression of crime, the 
Bertillon system is of the highest value, and it ought to be 
in operation all over the United States, with a central bu- 
reau at Washington, under the support and direction of the 
General Government." ^ 

Ten minutes now suffices for running through the 
Bertillon files, in the Paris police offices (in which 
1 Report, Washington, 1896, pp. 75, 95. 



AS A CLASS TO BE TREATED BY ITSELF 311 

are already the descriptions of many thousands of 
criminals), and picking out, if it is among them, that 
which identifies a new-comer. They are so classified 
and arranged that by a simple process of repeated 
exclusions, the result can be infallibly attained in 
every case. 

The measurements required are readily taken with 
the aid of a head caliper and common rulers fitted 
with a sliding block. If a man were arrested under 
an alias in California, and his description, ascertained 
by the Bertillon method, telegraphed to such a cen- 
tral bureau of registration at Washington, a reply 
could be received in half an hour which would state 
his previous history. 

Any system of dealing with habitual criminals as a 
separate class must, in a country like ours, be neces- 
sarily more complex than in one of the nations of 
Europe. 

Criminal justice is administered with us by nearly 
fifty different sovereignties, yet so bound together 
that every peaceable citizen of one has an indefeasible 
right to travel into and do business in every other. 
Unless, then, convictions in one State or Territory, 
in considering previous sentences to imprisonment, 
are given equal weight in every other State with 
those had there, it will be easy to evade the force of 
any laws regarding habitual criminals, by merely 
crossing the imaginary line which divides one of 
these jurisdictions from the next. A number of our 
States have passed statutes to meet this difficulty. 
Mr. Livingston introduced in his Code of Crimes and 



312 RECOGNITION OF HABITUAL CRIMINALS 

Punishments (art. 54) the provision that a previous 
conviction in any of our States should be as effectual 
for such purposes as a previous conviction in Louis- 
iana. Missouri and Georgia have made this their 
law, and Maine, Virginia, and Ohio include also con- 
victions before any United States court. 

It may also be necessary for Congress to make 
further provision for the reclamation of prisoners re- 
leased on parole or under surveillance in one State, 
who have fled into another. Where, in such a case, 
the release is conditional upon a continued resi- 
dence within the State by which they were imprisoned, 
it may be regarded as merely a temporary enlarge- 
ment of the jail limits, and extradition may be granted 
under the existing law.^ But where, as may often be 
desirable, the convict is released with a view to his 
employment in another State, that theory may prove 
inadequate to justify his surrender, if he violate his 
parole. 

Livingston may have been right in his day in lay- 
ing down the peremptory rule of confining for life 
all who have been thrice sentenced to the peniten- 
tiary. Since the invention of the Bertillon system, I 
cannot believe that it is as well calculated to serve the 
community, or even to deal fairly with the convict, 
as that of intrusting the proper authorities with a dis- 
cretionary power of conditional release. 

The objections to confining the habitual criminal 
within four walls until death, are indeed many. It 
shuts him out from any chance of beginning a new 

1 Drinkall v. Spiegel, 68 Connecticut Reports, 441. 



AS A CLASS TO BE TREATED BY ITSELF 313 

life as an honest man. It throws him as a perpetual 
burden on the public treasury. It tends to dissuade 
juries from conviction by the rigor of the penalty. 
It makes the criminal reckless how far he goes, since 
for any crime short of murder, there is the same 
length of imprisonment. It may sometimes give him 
the very thing he wants, a free bed and a free table. 

Our prisons are already too full. In 1890 the 
census told us that 13 15 out of every milhon of our 
population were imprisoned for crime. Ten years 
before, this number was 1 169 to the million; in 1870 
only 853. I do not think that this increase of num- 
bers is simply due to the increase of crime, nor at all 
to any increased efficiency in criminal prosecutions. 
It is referable largely to the fact that our prisons are 
becoming boarding-schools for the young, and shelters 
for the aged. They are really attractive to not a few, 
and those to whom they are attractive are often these 
very habitual criminals. They feel at home there. 
The jail gives them better food, cleaner beds, purer 
air, an easier life, than they generally find outside. 
Not a few are vagabonds during the open season of 
the year, and count on regularly returning to prison 
for their winter residence. 

On the other hand, poHce supervision for life, or 
for a term of years, leaves the convict free to build 
up a new character, and to earn his bread in his own 
way. 

He is, no doubt, a constant object of suspicion. 
He is sensible that he is being continually watched. 
His neighbors will not be unlikely to know it too. 




314 RECOGNITION OF HABITUAL CRIMINALS 

But with all these disadvantages, he is still breathing 
the open air, living in the home of his own choice, 
surrounded, if he will, by family ties, free from ar- 
rest unless he deserves it. 

The fact that most of those who enter the class of 
habitual criminals seem almost fated to it from their 
birth by their physical constitution does not lessen 
the right of society to hold them in this way respon- 
sible for their misdeeds so far as is necessary for its 
own protection. The wolf is not to be blamed for 
ferocity, but we shoot him at sight. A man, the com- 
munity cannot put to death, unless in absolute self- 
defence. Then it may, and it can with equal right, 
where the danger is less, do any less damage to him 
which self-preservation demands. 

Such a system might require for its efficacy the 
multiplication of our police, but it would be likely to 
reduce the expenses of our jails and penitentiaries. 
Shorter sentences would be given if release meant 
freedom from confinement, not from supervision ; and 
a second off"ence, for which imprisonment might be 
inflicted, would be less readily committed. 

But to circumscribe and reduce the class of habit- 
ual criminals is an end which, if attained, justifies 
any outlay of money. Every member of that class is 
a perpetual drain on the community, by day and night. 
He must be put at a disadvantage, and kept there at 
whatever cost, and whatever inconvenience to society 
or himself. He gives no quarter, and he must expect 
none. 



AS A CLASS TO BE TREATED BY ITSELF 315 

We speak of criminals in a proverbial phrase, as 
to be kept " under watch and ward," and we have 
assumed that when the ward is relaxed, the watch 
may cease also. It may in many, in most cases ; but 
habitual crime requires, if not both, then at least 
habitual watch. The worst enemies of the law ought 
never, for a moment, to be beyond its sight and 
reach. 

The criterion proposed for distinguishing the pro- 
fessional from the ordinary criminal — that of repeated 
convictions and sentences to imprisonment — is but 
a rude one. There are notorious rogues who are never 
fairly caught but once; there are men who may be 
found guilty of two or three offences grave enough 
to send them to jail, and yet have no thought or 
power of making a livelihood of crime. But to take 
any other rule of discrimination would leave too much 
to ex parte human judgment. It must be exercised ex 
parte, unless there is a charge and a hearing, and if 
these are to be required, it seems proper to leave them 
to come only in the common course of criminal pro- 
cedure, and let the record of the court determine the 
result. The test is also a familiar one, already pro- 
vided for analogous purposes in the statutes of every 
State. If it had even less merits of its own, this gen- 
eral sanction by long use would seem sufficient to 
justify, if not to require, our reliance on it. 



CHAPTER X 

THE DEFENCE BY THE STATE OF SUITS ATTACKING 
TESTAMENTARY CHARITIES ^ 

A CHARITABLE bequest is seldom relished by 
heirs. In most wills, the executor is himself 
an heir. If, then, the charitable intentions of the 
testator are to be carried out, it must often, if not 
ordinarily, be done by unfriendly hands. 

As every will is a departure from the usual rules of 
succession established or approved by the law, it is 
also a kind of challenge to the community. It asserts 
that the testator can dispose of his property better 
than they can ; that he can make a law for himself 
better than the law of the land. Our American 
States have adhered to the ancient principle of 
Roman law, as found in the Twelve Tables, that for 
every citizen " iiti legassit super pecunia, tiitelave suce 
rei, ita jus esto" more closely than did Rome herself. 
In most of them there is no statutory restriction on 
the right to disinherit. Precisely for this reason an 
American will is peculiarly open to attack. The 
sympathies of the people are with the heir, who has 
been stripped of everything, when they might not be 

1 The greater part of this chapter is taken from a paper read by 
the author in the Judicial section of the Congress of Jurisprudence, 
held at Chicago in connection with the Columbian Exposition, in 1893. 



DEFENCE OF TESTAMENTARY CHARITIES 317 

aroused if some Falcidian law guaranteed him a cer- 
tain share of the inheritance. The vahdity of the 
will must be determined by a jury, and the jury will 
be a fair representative of popular sentiment. 

Charitable bequests would be in less danger, also, 
had we a form of action such as is familiar to most 
countries, by which wills can be attacked directly and 
openly, when the heir is passed over without due 
cause. But, so far as I am aware, there is no remedy 
for a mere undutiful will, except in Louisiana. Else- 
where the heir can gain what the community are apt 
to regard as his rights against such an instrument 
only by breaking it altogether, as the act of one with- 
out testamentary capacity, or unduly influenced, or 
by maintaining some legal objection to particular 
provisions adverse to his interest. 

Where the devisees or legatees are natural persons, 
taking a beneficial estate in their own right, they 
can be trusted to protect themselves. If minors, a 
guardian ad litem will maintain their interests, and, if 
necessary, even against their parents. 

So provisions for charities may be adequately 
defended, if made in trust to corporations having 
funds with which to employ proper counsel. But it 
is not so when the trustees, whether natural persons 
or corporations, are without funds, or, if corporations, 
are not under efficient management. They can then 
hardly be expected to present their claims in the 
most effective way. 

The executor, indeed, represents the dead, but if he 
be one of the heirs who would otherwise succeed, his 
adverse interest will be likely to make his defence 



3i8 THE DEFENCE BY THE STATE OF SUITS 

perfunctory. He may, indeed, virtually lead the 
attack, by bringing an equitable action, after the 
probate of the will, to determine its proper construc- 
tion and effect, where these are doubtful. The doubt 
may be so stated as to exaggerate its importance. 
Considerations and authorities tending to defeat the 
will may be brought to the attention of the court, 
and others left unnoticed which go to support it. 

It is true that the court, in such a suit, may often, 
perhaps ordinarily, be trusted to recall the law, and 
apply the proper rule; but a decision upon a case 
that has been but half argued is seldom quite satis- 
factory, nor is it the true ofifice of a judge to supply 
the want of counsel for the absent or undefended. 
This is a duty not to be disregarded, when it is forced 
upon the bench, but the rarer the occasions for its 
exercise, the better will be the administration of 
justice. It is a duty of the State, but one which 
the State can best discharge through its executive 
officers. 

The French Code of Civil Procedure (article 83), 
provides that notice of every suit concerning public 
corporations and establishments, and gifts and lega- 
cies for the benefit of the poor, shall be given to the 
principal law officer of the State {procuretir de la re- 
piibliqtie), and bestows upon him authority to inter- 
vene in any other cause in which he may deem his 
participation necessary. 

England makes it the duty of her Attorney-General 
to institute all proceedings necessary to secure the 
due application and administration of charitable en- 
dowments. A similar function has been cast upon the 



ATTACKING TESTAMENTARY CHARITIES 319 

Attorney-General of many of our States. I believe 
that this should be the practice in all, and that the 
French law might well be followed, by requiring ser- 
vice of process upon the Attorney-General in every 
suit affecting either the validity or the administration 
of a charitable gift. 

It would not be difficult for him to ascertain 
whether, among the other parties to the controversy, 
were any who would adequately present the cause 
of the charity. His function in this respect would 
be somewhat analogous to that of the Queen's 
Proctor in England, in uncontested divorce suits. 
He would be bound to see that all the material facts 
were placed before the court; that there was noth- 
ing savoring of collusion ; and that the leading 
authorities in support of the bequest, if its validity 
were questioned, were fairly presented. Should he 
find that others stood ready to do this, his active 
intervention would be unnecessary; but otherwise 
it would be vital to the attainment of justice. 

The appearance of the Attorney-General in pro- 
ceedings for the probate of a will may seem more 
like an intrusion into matters of private concern than 
his participation in suits arising as to the meaning 
and effect of the instrument. But where the exec- 
utor is adversely interested, it is never safe to trust 
him implicitly. A very little inattention or neglect 
on his part will suffice to defeat the probate. The 
charitable provisions may be inconsiderable, as com- 
pared with the other bequests, but, be they great 
or small, the State which has, for its own good, 



320 THE DEFENCE BY THE STATE OF SUITS 

given the testator power to make them, has an 
interest in their preservation, not only for what they 
are in themselves, but for their effect on the commu- 
nity. A government under which charitable wills 
are generally set aside will soon come to have few 
of them. 

The object and effect of every charitable bequest 
is to confer a public benefit; else it is no charity. 
I say its effect, for on this point the opinion of the 
community, as manifested in its laws, must be de- 
cisive. Turgot did not speak for any century but 
his own when he declared that all permanent endow- 
ments were permanent evils. The tendencies of 
Christian civihzation are all towards altruism. As 
the range of superstitious uses has been narrowed, 
that of public uses has been enlarged. We under- 
stand better the duties of man to man, and if the 
performance of some of them is too often deferred 
until after death, there is all the more reason why 
the State should see to it that the will by which 
it permits this to be done should have its full 
effect. 

Capital is accumulated for a few by the labors of 
many. Charity returns it to the many. The indi- 
vidual, under the forces of civilization, is yielding to 
the masses by daily necessity. In charity, he yields 
from a better motive. It is the stream flowing to the 
sea. It is the gift coming back to the giver. In 
no country has this process gone on so rapidly as 
in the United States of the nineteenth century. 
The example in this, as in so much else, was set 



ATTACKING TESTAMENTARY CHARITIES 321 

by Franklin ; and the richer among his countrymen, 
gaining wealth in the same way as he, as the easy 
reward of honest and intelligent industry under 
favorable circumstances, have followed him in leav- 
ing part of it behind them for the service of their 
fellow-citizens. With us it is a subject of remark 
when a rich man's will contains no charitable be- 
quests. With us, therefore, it is peculiarly the duty 
of the State to guard this tribute from the dead 
which public opinion almost demands, and no surer 
safeguard can be found than the intervention of the 
principal law officers of the government from whose 
statutes the will derives its force. 



CHAPTER XI 

SALARIES FOR MEMBERS OF THE LEGISLATURE. 

IT is one of the oldest of English political traditions 
that the member of a legislative body should 
serve without reward. He occupies a representative 
position. He is an agent for others, and the original 
conception of the nature of agency made it always 
a gratuitous contract. He is a spokesman for 
others, and an advocate in most countries has been 
considered as occupying a position of trust and 
honor, which he would degrade by demanding 
compensation. 

Of the three departments of government estab- 
lished under the familiar though somewhat unpracti- 
cal division of power which has found its way into 
most of our American Constitutions, the legislative is 
the only one whose principal members have not 
always been paid for their time. 

The King, and his successors under republican in- 
stitutions in independent States, have necessarily been 
subjected to large expense in maintaining such an 
establishment as the courtesies of official life require. 
They have been forced to live, to entertain, to travel, 
in a certain style, were it only to maintain the dignity 
of the people for whom they stand, in the eyes of 
foreign powers. Their appointments, therefore, have 
been on a liberal scale, and in case of Presidents of 



SALARIED LEGISLATURES 323 

republics some regard has often been paid to the 
future by giving them a salary from which something 
can be saved towards their support on retirement to 
private life. In the United States this has been done 
in part by indirect and generally unnoticed means, 
through a gradually increasing number of items in 
the appropriation bills for horses and carriages, fur- 
niture, hot-houses, conservatories, fuel, light, and at- 
tendance at the executive mansion, books and 
stationery, and other " contingent expenses," and 
according to the President a tacit right to call on the 
navy to furnish the music for his state dinners, or the 
steamer for his summer vacation trips. 

Judges, as they must devote their entire time to 
their official duties, have everywhere been salaried 
officers, and often received, when superannuated or 
otherwise withdrawn from service, a retiring pension. 

From the days of the Roman republic, however, 
until the adoption of the Constitution of the United 
States, it was otherwise with members of legislative 
bodies. To pay them was deemed not only to de- 
grade their office, but to present a temptation for its 
abuse. The natural measure of compensation, were 
any offered, would be the time spent in their public 
duties. But most nations have been content with the 
maxim that the fewest laws were the best, and there- 
fore solicitous that legislative sessions should be 
short. Wherever any allowance was made to the law 
makers, it was by way of indemnity, not compensa- 
tion. Their expenses only were defrayed. 

This was the English practice when parliaments 
there first took shape. The King's writ of summons 



324 SALARIES FOR MEMBERS 

not only directed the election of knights, citizens, 
and burgesses, but ordered the sheriff to levy upon 
the landholders (who were electors of the shire), for 
the benefit of their representatives, such sums as 
would meet their ** reasonable expenses " in travelling 
to and from parliament and while attending its ses- 
sions. Later, these sums were made certain, and the 
levy was to be for a specified number of days, at the 
rate of four shillings a day for each knight of the 
shire, and half that sum for a citizen or burgess.^ 
The members, at this period, came to parliament 
with a commission in the fashion of a general letter 
of attorney, by which '^ plena potestas" was given to 
act for their constituents.'^ 

Service upon such a footing was obviously incom- 
patible with the character which the House of Com- 
mons soon came to assume. The members were 
under an implied obligation to keep the particular 
interests of those who sent and paid them in view, 
and to obey any directions which they might see fit 
to give. They could not act the free part of rep- 
resentatives of the English people and of all the 
people. As soon as this conception of a member's 
duty to his country at large began to prevail, the writs 
ceased to call for any levy for their use, and they 
became, for the first time, independent of local 
dictation. 

By this time also the landed interest had found 
how valuable parliamentary representation was, and 

1 Blackstone's " Commentaries," Cooley's ed. i. * 174, and note. 
^ Taylor's " Origin and Growtii of tiie English Constitution," i. 
476. 



OF THE LEGISLATURE 325 

there was no trouble in filling the House of Com- 
mons with those who were willing to serve at their 
own charges. 

The first English settlements were made in the 
United States before this change had been fully ac- 
complished, and our colonial legislatures generally 
provided for the expenses of their members, but at 
the cost, not of the counties or towns from which 
they came, but of the general treasury. 

When the Continental Congress came into existence, 
each State paid in the same way for the expenses of 
its delegation. In some of the Southern States a lib- 
eral allowance for this purpose was made. That of 
Virginia, Jefferson, in his " Notes on Virginia," esti- 
mates as averaging $7,000 a year in gold. The repre- 
sentatives of the Northern States, in which there were 
fewer independent fortunes, were men accustomed to 
live more simply, and generally received much less. 
Connecticut was in the habit of electing six delegates, 
but providing that not more than three at any one time 
should be in attendance at Congress at the expense 
of the State. The others might lend their presence, 
if they chose, at their own charges, but not otherwise.^ 

When the Convention that framed the Constitution 
of the United States met, this subject was discussed 
at great length and on several occasions. The Vir- 
ginia resolutions, which constituted the original basis 
of their work, proposed that senators and represen- 
tatives should " receive liberal stipends by which the}^ 
may be compensated for the devotion of their time 
to the public service." 

1 Connecticut State Records, i. 10. 



326 SALARIES FOR MEMBERS 

It was urged that under the system prevailing as to 
the existing Congress, the best men often dedined to 
serve, on account of pecuniary inability;^ and the 
reply was that the best men were seldom the poorest, 
and honor counted for more than pay. The word 
" liberal " was finally struck out, and after some hes- 
itation as to whether or not to replace it by either 
"adequate" or " fixed," ^ the article was put in the 
shape finally adopted, by which the rule was estab- 
lished (Art. I. Sec. 6) that " the senators and rep- 
resentatives shall receive a compensation for their 
services, to be ascertained by law and paid out of the 
treasury of the United States." 

This was, I believe, the first declaration in history 
by any government that representatives in a legisla- 
tive body should be paid for their services. It was 
carried against strong opposition. Gov. Gerry stated 
it as one of the reasons why he could not concur in 
behalf of Massachusetts, in signing the Constitution.^ 

Attempts were made, in the course of the discus- 
sions, to agree on some rate of compensation which 
should be definitely fixed in the Constitution itself. 
One delegate advocated $5 a day, and another $4, 
but the general opinion was that any sum which could 
be named would appear so extravagant to many of 
the people that the ratification of the Constitution 
might be imperilled. There were some of the South- 
ern members also who opposed the grant of any com- 
pensation, on the ground that the want of it was the 
best way to fill Congress with men of property, and 

1 Madison's Journal, Scott's ed., 153. 
2 Ibid-i 153, 160, 220, 248, 445. 3 Ibid., 740. 



OF THE LEGISLATURE 327 

that only if so constituted could it be depended on 
to guard the different interests to be committed to its 
keeping.^ 

The power thus intrusted by the Constitution to 
Congress was certainly not abused at first. A law 
was passed giving each member six dollars for each 
day of actual attendance, and six dollars more for 
every twenty miles of distance by the usual route to 
and from his home. The senators in the first Con- 
gress asked and secured a dollar a day more, in view 
of their superior dignity, but the house insisted, in 
1796, that its members should be put upon an 
equality with them. 

Twenty years later an annual salary of $1,500 was 
substituted for the per diem allowance, and the meas- 
ure made to apply to the Congress which passed the 
law. This retroactive feature of the bill made it ex- 
ceedingly unpopular throughout the country. The 
first Congress had proposed an amendment to the 
Constitution prohibiting any such action, which re- 
ceived the approval of a majority of the States which 
voted on the question of ratification, though not of 
the necessary two thirds.^ The people were indig- 
nant that a rule of propriety which had come so near 
to finding a place in the Constitution had been vio- 
lated. The legislature of Massachusetts adopted a 
formal protest. Many of the representatives who 
had supported the law lost their seats ; and before 
the session closed it was repealed. The next Con- 

1 Madison's Journal, Scott's ed., 247, 284, 494. 

2 Annual Report of the Am. Hist. Association for 1896, vol. ii. 
PP- 34, 317- 



328 SALARIES FOR MEMBERS 

gress replaced it by one which returned to the per 
diem plan, but made the rate eight dollars instead of 
six dollars. This stood until 1856, when a bill pro- 
spective in its terms, established the compensation of 
members of both houses upon the footing of a salary. 
The amount was made $3,000, which was raised in 
1866, when gold was at a considerable premium, to 
$5,000, and in 1873 to $7,500. This last measure 
was again a retrospective one, and with the same 
results for its promoters as in 1816.^ There was a 
general cry of " back-pay grab " which defeated the 
re-election of most of the representatives who had 
taken advantage of its provisions, and led to the res- 
toration, during the next year, of the former rate. 
Since then the only substantial change has been to 
give each member a clerk at the public expense. 

The first European nation to follow the American 
lead in this matter was Belgium. Under her Con- 

^ It is an assuring indication of the good sense of the American 
people that so little has been seriously attempted in the line of con- 
stitutional amendments, and that the few which have been proposed 
by Congress have generally demonstrated their fitness by securing 
prompt ratification. This makes the more remarkable the rejection 
of that forbidding retrospective laws to increase the pay of members 
of Congress. Only nineteen amendments have ever been thus pro- 
posed, and of these but four failed to secure the approval of a majority 
of the States. 

One of the four was that of 1789 which has been described; an- 
other that of 1789, regulating the apportionment of representatives; 
another that of 1810, disfranchising any citizen of the United States 
who might accept any title of nobility or honor, or without consent 
of Congress accept any emolument from any foreign power ; and the 
last that of 1861, to prevent any future amendment of the Constitu- 
tion for the abolition of slavery. 



OF THE LEGISLATURE 329 

stitution of 183 1 the deputies in the lower house of 
her legislative assembly received eighty dollars for 
each month of the session. This sum was fixed as 
a mode of reimbursement for money paid out, not 
remuneration for services rendered, and the members 
from Brussels could not claim it, they not being 
necessarily subjected to anything more than their or- 
dinary expenses. To the senators nothing was given. 
No one was eligible to that office who was not a large 
taxpayer, and they therefore presumably had no 
occasion to look to the public treasury. 

Our States have generally adhered to the practice 
of paying a daily allowance, which is often limited to 
a fixed number of days, or reduced after a fixed 
number of days has elapsed. In the few which have 
substituted salaries, the amount is not greater than 
would pay the board and incidental expenses of the 
member during the continuance of the session. 

The absence of an hereditary aristocracy, or any- 
thing in the nature of a leisured class in this country 
made it necessary at least to indemnify our legisla- 
tors against the actual cost of their temporary resi- 
dence at the capital. The growing length of Con- 
gressional sessions has probably justified the change 
of policy by the United States. They have come 
to take most of the time of their senators and repre- 
sentatives, and it is proper that they should pay 
something, at least, towards the support of their 
families. 

Soon after the passage of the Reform Bill in Eng- 
land, the leaders of the working people there began 



330 SALARIES FOR MEMBERS 

to advocate the introduction of salaries for members 
of the House of Commons, as well as the repeal of 
the statute which imposed a property qualification 
for their election. Of the six points in the People's 
Charter of 1838, these were two.^ 

The latter only met with any general favor. That, 
after a few years, was carried, but the other both the 
great parties have always hitherto refused to support. 
Nor has it received the adhesion of those who may 
be called the philosophical reformers. John Stuart 
Mill, Hare, and Bryce have pronounced strongly 
against it.^ Justin McCarthy, no doubt, fairly repre- 
sented the state of public opinion, on the part of the 
liberal school of politics, not less than the conserva- 
tive side, when he spoke of it in his " History of Our 
Own Times " as decidedly objectionable." ^ 

The revolutionary movements of 1848, though they 
did little to advance the cause of Chartism in Eng- 
land, left lasting effects on the Continent. The Con- 
stitution adopted in November of that year by the 
French Republic contained an article (chap, v., 
Art. 38) providing that " every representative of the 
people is to receive a remuneration which he is not at 
liberty to renounce." * It was a natural complement 
to two of the preceding articles (34 and 35) in the 

1 Jephson, on " The Platform," ii. 171. 

2 Mill's " Dissertations and Discussions," iv. 96 ; Bryce's " Ameri- 
can Commonwealth," i. 191. ^ Vol. i. p. 80. 

* Denmark at about the same time adopted the rule of compensa- 
tion, and has always adhered to it. It also took root in Norway. 
Prussia put the French provision into her Constitution of 1850, in 
almost the same words, as to members of the lower house. 



OF THE LEGISLATURE 331 

same chapter, which declared that " the members of 
the national assembly are the representatives, not of 
the department which nominates them, but of the 
whole of France : they cannot receive imperative 
instructions." Three years later, all were swept away 
by the Constitution of 185 1, framed by Louis Napo- 
leon, in which any payment, either to senators or 
deputies, was prohibited (chap, iv.. Art. 22 ; chap, v., 
Art. 37). He too was consistent with himself. De 
Tocqneville had written with a prophetic instinct a 
few years before, that when a democratic republic ren- 
ders offices, which had formerly been remunerated, 
gratuitous, it may safely be believed that that State 
is advancing to monarchical institutions." ^ 

During the brief life of the Constitution of 1848 a 
law was passed under which the deputies received 
a salary of $1,800. Immediately after the fall of 
the second empire, it was restored, and senators 
and deputies were, in 1875, placed upon the same 
footing.^ That of the former has recently been raised 
to $3,000. 

The French national assembly is not ordinarily in 
session for more than five months of the year. Its 
members come to the capital from a distance but 
little greater than that travelled by members of the 
British House of Commons, and there is no other 
reason why one nation should give and the other deny 
compensation to the representatives of its people, ex- 
cept that found in the more aristocratic character of 

1 Democracy in America, i. 224, Langley's ed. 

2 Codes Fraji^ais et Lois Usuelles, Riviere's ed., pp. 8, II. Laws 
of Aug. 2 and Nov. 30, 1875. 



332 SALARIES FOR MEMBERS 

the older government This is steadily waning. The 
lowering of English rents has been a severe blow to 
the county family. The extension of the parliamen- 
tary franchise has brought new men, and new kinds 
of men, into positions of political influence. The 
very system of primogeniture, with the traditions 
which have grown up to strengthen its hold on English 
society, is continually driving more and more of the 
titled and landed class to seek their fortunes in trade, 
and make a name and place for themselves by their 
own exertions. If such men can no longer be sent 
to parliament by family interest ; if the only way to 
gain a seat is to commend themselves to the mass of 
the people; if they have nothing to live on, should 
they secure an election, but a slender allowance 
charged on a diminishing estate, — they are not un- 
likely to come to view this question of payment for 
parliamentary service in a new light. 

The House of Commons has undergone a greater 
change within the last thirty years than most English 
writers are willing to acknowledge. It does not yet 
fairly represent in its composition the people at 
large, but it is fast losing its ancient character as 
a body of landlords or dependents of landlords. 

Were it not for the want of salaries, this change 
would be much, more rapid. As things stand, if the 
workingmen wish to send John Burns there, they 
must provide for his support out of their own pockets. 
If Ireland desires a representation that really repre- 
sents her, her hundred delegates must, almost to a 
man, be maintained at London by public subscrip- 
tions, and largely by American money. 



OF THE LEGISLATURE 3^3 

There is something unseemly and incongruous in 
the dependence which such a system, in its practi- 
cal working, entails on the legislator who looks to 
private charity for the payment of his board bill. 
Particularly is this true where the funds come in 
great part from a foreign country, and are contributed 
by those whose motive is the hope of effecting a fun- 
damental change in the British Constitution. The 
American Irishman aids in keeping the Irish parlia- 
mentary delegation full, because he thinks it will 
further a repeal of the Act of Union of a hundred 
years ago. The very fact that their support is pro- 
vided for from such a source puts the Irish members 
under a certain obligation to work towards that end. 
They would probably do so without the motive ; but 
that they are placed in such a situation is, of itself, a 
reproach to the laws which make it possible, if not 
necessary. 

Germany, with her popular assembly elected by 
universal suffrage and continuing for a five years' 
term, is faced by a similar demand. There, as in 
England, the influence of an aristocracy joined to 
the fears of capital is in steady opposition to any 
change, and there is a constitutional provision that 
" the members of the Reichstag shall not be allowed 
to draw any salary or be compensated, as such." If 
the representatives of the people were to be paid 
from the treasury, and paid enough to justify a work- 
ingman in laying down his tools with the certainty 
that his family would be well provided for while he 
was at the capital, the ranks of the socialist members 
would soon increase. 



334 SALARIES FOR MEMBERS 

In Italy custom has relieved the government from 
any serious difficulty in dealing with this question. 
The saying there is that the senate is at Rome, but 
not the senators. Most of them, hke the peers in 
the British House of Lords, though for different 
causes, are only occasionally at the capital. No 
compensation is paid to the members of either house. 
They have, however, a free pass to and from Rome 
over the railways, and it is freely used. 

Bazin, in his " ItaHans of To-day," mentions a con- 
versation on this subject with a senator from Vicenza 
who had been twenty years in office. It was seldom, 
he was told, that a majority of senators were in at- 
tendance. Most of them were to be found at their 
homes, engaged in ordinary business pursuits. The 
physician was visiting his patients, the lawyer advis- 
ing his clients, the professor meeting his classes. 
Few senators or deputies were men of large fortune, 
but all had either some independent means, or an 
assured income from their own industry. They felt 
that under such a system, as representatives of the 
people, they were more vitally in touch with them 
than could be the case were each expected to re- 
main at the capital through the entire legislative 
session. 

Somewhat similar results follow in those States of 
the United States where free railroad passes are a per- 
quisite of legislative membership. The representative 
generally spends his Sundays at home, and often 
the day before and the day after. He is, however, 
seldom absent from the legislative sessions. Public 
sentiment is against it, and the legal provision for his 



OF THE LEGISLATURE 335 

expenses makes constant attendance possible for the 
poorest. 

Of the lesser American republics, several have fol- 
lowed the example of the United States. 

Mexico, in her Constitution of 1859 (Tit. VL, Art. 
120), provides that the members of the Chamber of 
Deputies shall receive a compensation for their ser- 
vices, which they may not renounce. It is to be 
fixed by law, prospectively only, and paid from the 
federal treasury.^ Senators are to be paid, if at all, 
by the States which send them. 

The practice in the British colonies differs widely. 

In Australia a salary of $1,500 is allowed by the 
leading provinces to members of the lower house ; 
those of the upper are sometimes paid less, because 
they need it less.^ Canada confines herself to allowing 
a " sessional indemnity." In the Bahamas no com- 
pensation is allowed, but citizens of New Providence 
may be chosen as the representatives of other islands, 
and often are ; the result of which has been greatly to 
strengthen the predominance of Nassau in the affairs 
of the government. 

Sweden has adopted the Belgian system ; paying 
the members of her lower house of Parliament, but 
not those of the upper house. 

1 Annals of the American Academy of Political and Social 
Science, ii. 44. Colombia, in her Constitution of 1886 (Art. 112), 
repeats the provision against retrospective increases of salaries. 

2 New Zealand pays ;!^240 a year to those of the lower house, 
and only ;^I50 to those of the upper. 



336 SALARIES FOR MEMBERS 

The Swiss Federal Assembly, while leaving each 
canton to pay its own representatives in the Council 
of States, follows the general rule of our American 
States, by giving each delegate to the lower house 
a certain sum ($4) for each day's attendance, to- 
gether with a mileage allowance for his travelling 
expenses.^ 

This is probably sufficient for any legislative assem- 
bly, under a republican form of government, whose an- 
nual session is short, and whose members are not too 
distant from their homes to prevent them from mak- 
ing frequent visits there, and so retaining some real 
hold upon their private affairs. It has worked well 
in this country, and will in any where the honor and 
the opportunity which office gives are its main 
attractions. 

These are at their best in the United States. Here 
is the only land in which a civilized and educated 
people are building up new political institutions to 
suit themselves. Australia comes near it; but 
Australia is subject to the British Empire, and to a 
parliament in which she has no representation. Japan 
comes near it ; but Japan is still subject to a sovereign 
who has, in theory and form at least, most of the 
powers of the Roman Emperor. 

Every American citizen is engaged in a grand ex- 
periment — that for which Washington declared it 
was his main purpose in accepting the Presidency to 
secure a fair trial, — to determine "with what dose of 

1 Moses, on "Federal Government of Switzerland," 113. Until 
1874, it was only $2.40 a day. A day's pay is docked for every day's 
absence without excuse. Winchester's " Swiss Republic," 68. 



OF THE LEGISLATURE 337 

liberty man can be trusted for his own good." The 
authoritative leaders in this work are our public officers 
and, most of all, our legislators. Much of the best 
of it, no doubt, is done by private individuals, in the 
press and on the platform, or in drawing and urging 
bills for legislatures to pass. But such men are labor- 
ing for others to reap. Nor at most can they do 
more than propose the form of laws and institutions. 
They must pass them over to others for the final 
touch and the last word. Seldom can they link their 
names to them in history. Often must they see them 
fail for want of intelligent support, or turned to folly 
by some hasty amendment. 

The American legislator is tied down to no theory 
of political administration. His constituents expect 
him to add and to improve ; not so much to hold 
fast to what is good as to make what is good better, 
and to state it better. The growing tendency towards 
codification necessarily increases his work and also 
his possibilities of personal distinction. He is a 
builder, and what he builds may set the fashion for 
other States and other times. 

The architect who planned the cathedral of Co- 
logne, though he might die before the foundations 
were fully laid, could count on the completion of the 
great structure in some distant age, in exact accord- 
ance with his original design, for he dealt with the 
immutable principles of an ideal science. But in 
government no principles are immutable, — none, at 
least, which men have thus far put in form. Gothic 
architecture can be stated in stone, but political 
science must be stated in the changing speech of 

22 



338 SALARIES FOR MEMBERS 

men, and political institutions shaped by ever-mov- 
ing national characteristics. To one whose station 
puts it in his power, without abandoning his ordinary- 
means of livelihood, to share and direct in such a 
work, no reward ought to be needed that ambition 
does not supply. 

No doubt there are enough who seek a seat in the 
legislature from motives very different, and make the 
want of a salary an excuse for selling their vote or 
petty pilfering from the public treasury. There have 
been representatives of this description both at Wash- 
ington and our State capitals, who have trafficked in 
public documents, and carried home enough of pens 
and paper, inkstands and portfolios, twine and pocket- 
knives, from their desks to stock a country store. It 
is not long since a Western congressman declared 
that he had been able to save his entire salary by sell- 
ing his stationery supplies to pay part of his board 
bill, and meeting the rest from the difference between 
his mileage and his actual travelling expenses. 

There are, on the other hand, many of our best 
citizens who have no time that they can afford to give 
to the public, and are thus shut out of our legisla- 
tures, to make room for richer and weaker men. 
The description of the Senate of the United States 
as a club of millionaires has enough truth in it to 
make the jest a bitter one. The salary of a senator 
is inadequate to meet the expense of housekeeping 
at Washington in the style usual in the higher official 
circles to which he belongs. Nor, if he is content to 
live at a boarding-house or hotel, can he lay by enough 
to help him materially after his term of office has ex- 



OF THE LEGISLATURE 339 

pired, in gaming a proper start in whatever business 
he may find open to him. One of the seven senators 
who saved the nation from a grave reproach by 
defeating the conviction of President Johnson, when 
impeached for defending what he deemed the consti- 
tutional prerogatives of the executive against con- 
gressional encroachment, and who lost his re-election 
by it, was, a few years ago, supporting himself as a 
compositor in a printing-office. ^ 

But this is a difficulty inherent in the practical 
administration of republican government in a coun- 
try without the traditions of a court. What salaries 
are given will not be very far above what is com- 
monly earned in an ordinary business pursuit. In 
most of the States, even these salaries for the higher 
executive and judicial officers are felt to be a con- 
siderable burden on the treasury, and the inferior 
ones are largely compensated by fees paid by those 
for whom they are called upon to render service. 
This system often leads to absurd results. A clerk 
of court or the sheriff in attendance may thus receive 
twice, and sometimes ten times, the salary of the 
judge. But the foundation on which it rests, that a 
man's pay should be proportioned to his work and 
come from his work, is in accordance with American 
ideas. For legislation no fees can be safely paid to 
the legislators, and if there were no other reason for 
denying them a salary in the ordinary State, their 
number would be a sufficient one. Any salary that 
could be deemed an adequate remuneration for the 

1 This was Senator Ross of Kansas. President Cleveland came 
to his relief by giving him an appointment as a territorial governor. 



34 o SALARIED LEGISLATURES 

time spent, when multiplied by one, two, or three 
hundred, would amount to a sum too large to be 
added to the annual budget without the strongest pro- 
test from those on whom the new burden would fall. 

The rule of confining salaries to an indemnity for 
the expenses ordinarily incurred rests, therefore, upon 
solid foundations. The extension of the principle of 
federal government will tend to relax it in the case 
of the great powers, as it has already in the case of 
the United States. The influence of the large capi- 
talists and corporations, on the other hand, will 
be exerted towards restricting salaries or excluding 
them altogether. The absence of remuneration is the 
least objectionable form of a property qualification for 
office ; and the rich prefer to be governed by the rich. 

I venture the prediction that half of the twentieth 
century will not pass away before England provides 
for the expenses of the members of her House of 
Commons. She would have done so before France, 
had her civil war not been before that of France. 
Governments are like railroads : they must all, in 
course of time, pass through a process of foreclosure 
and reorganization. The old management is set 
aside, and the plant put in new hands to be worked 
by new methods. The Stuart management was fore- 
closed by the English people a century before the 
French Revolution. The Hanoverian line came in 
before the theory of modern government had been 
evolved. Its quiet rule can be adapted to the new 
form which society is assuming, without a new fore- 
closure ; but the process, though slower, will be not 
less sure. 



CHAPTER XII 

PERMANENT COURTS OF INTERNATIONAL 
ARBITRATION 

IT was one of Matthew Arnold's fine sayings that 
two things govern the world, Force and Right, 
— Force till Right is ready. 

Right has already displaced force as the real basis 
and criterion of authority in the government of every 
civilized country. If the sovereign power is in the 
hands of an absolute monarch, he claims it only by 
" hereditary right," or popular choice, and appeals 
to law as its source and sanction. The principles of 
jurisprudence, also, recognized as governing the rela- 
tions of private citizens to each other, are substan- 
tially the same in all the leading nations of the world ; 
and they are the same because they are derived from 
the conception of the equality of right. Altruism 
has become an accepted standard of human conduct. 
Some still deny the fatherhood of God, but no one 
disputes the brotherhood of man. That selfish spirit 
which once made every nation call all foreigners 
either enemies or barbarians has shrunk away to the 
furthest outskirts of civilization. 

These upward tendencies of the human race may 
be said to have become first discernible as world 
forces in the control of social movements shortly 
after the era of the Reformation. 



342 PERMANENT COURTS OF 

The Roman Catholic church had before interposed 
a power between God and man, and between nation 
and nation, which had been necessarily antagonistic 
to the development of such ideas. Ecclesiastical 
power had often had little to do with right; and men 
knew it. God was the God of the Catholic, as Jeho- 
vah had been called the God of Israel ; not the father 
and lover of all. It was not until 1537 that the papal 
bull was published which declared the natives of 
America to be rational beings. The sixteenth cen- 
tury began with the attacks of Luther on the usurped 
position of the church as the central power on earth, 
and of Copernicus on the usurped position of the 
earth as the centre of the universe. It was a logical 
consequence of these new views of things that na- 
tions should begin to assume new relations to each 
other. The foundations of human philosophy had 
been moved. The only form of ecumenical human 
authority had been swept away. Something must 
be brought forward to replace what had been thrown 
aside, something better and higher. 

The seventeenth century responded with the prop- 
osition of Henry IV. of France, made in 1609, to 
establish the Christian Republic of Europe. It was 
to consist of fifteen States, each to be of as nearly the 
same size and power as the others, or, should Russia 
accede to it, of sixteen. The Turks were to be 
driven back into Asia. A diet of four representatives 
from each State, to be constituted by the name of the 
Senate of the Christian Republic, was to regulate the 
relations between the constituent powers, raise a 
sufficient military force to preserve the peace of 



INTERNATIONAL ARBITRATION 343 

Europe, and make an equitable apportionment of the 
necessary expense. 

The death of Henry during the following year, and 
the accession of a child to the throne as his successor, 
left France in no position to press this scheme; 
but it was, no doubt, one of the things that led 
Grotius to prepare his work on the " Law of War and 
Peace," which was the real beginning of international 
law. This was published in 1625, soon after Louis 
XIIL had come of age ; and in an elaborate dedication 
of the treatise to the young king, Grotius declares 
that all Christian peoples demand of him no less than 
that, under his lead, wars may be everywhere extin- 
guished, and peace return to States and to the 
Church alike. On the foundations thus laid there 
has been since built up by slow degrees, during a 
period of nearly three centuries, a new science. 

It is a science that it would have been impossible 
for men t« comprehend prior to the Reformation, 
Until Christianity took possession of the Roman 
Empire and of the thought of the world, nations 
occupied a position of entire estrangement from, if 
not of hostility to each other. After the Roman 
church rose into power and the papacy was developed, 
it assumed the position of the universal lawgiver and 
judge. A general council of the church was, in 
truth, a council of the world, and spoke with a 
world-wide authority. 

That international law which has taken the place 
in Christendom of the will of the church, does not 
profess to have, of itself, any original and binding 



344 PERMANENT COURTS OF 

force. It is not law, in any sense in which that term 
is ordinarily used in civil government; but it rests on 
the same foundations as municipal law, — the consent 
of the governed. The people in every community 
make their own law ; and most of it they make from 
day to day by their habits of life and business usages. 
So have civilized nations generally come, as a result 
of their ordinary intercourse, to agree on certain rules 
of conduct to govern their mutual relations. Here, 
however, we must stop to mark a point of essential 
difference. Each community can enforce its own 
laws on its own people, and on all who are found 
within its territory. It may and does adopt interna- 
tional law as a part of its municipal law, and enforce 
it in the same way. But there is no common author- 
ity to compel the observance of international law by 
or between independent nations. 

The decisions of courts of justice in rude ages, and 
in uncivilized countries in our own time, are little 
regarded, except as obedience is exacted by the 
strong hand. Under such governments, however, 
as those to which we are subject, the judgments of 
courts are commonly executed without any resort to 
compulsory process. Public opinion demands that 
they be respected, and the services of the sheriff are 
not required. 

If, then, there is such a thing as a public opinion 
common to several independent nations, why may it 
not have, for all practical purposes, the same effect, 
in producing acquiescence in results reached by 
international tribunals on principles of international 
law? 



INTERNATIONAL ARBITRATION 345 

The phrase " republic of letters " has long been 
a familiar one. It recognizes no local or national 
boundaries ; it expresses the community of thought 
and feeling which exists between all educated men. 
Has there not come to be, is there at least not 
coming to be, a similar unity of conviction among the 
leading nations of the world as to standards of national 
duty ? 

Grotius said ^ that there was no room for decisive 
and final arbitration between kings or peoples, 
because there could be no superior power to create 
or to dissolve an obligation under such conditions. 
There was none in his day; but he has helped to 
make one in ours. His discussions and propositions 
have not only led to something like a systematic code 
of international law, but to a certain consensus as to 
international morals. Plain deahng is now recog- 
nized as the best mode of diplomatic negotiation. 
No Machiavelli, and, we may even say, no Talleyrand 
would now be tolerated at the head of any English, 
French, or German Cabinet. The greater participa- 
tion of the people in the government, the publicity 
given to ministerial despatches and parliamentary 
debates by the press and the ocean cable, have 
changed the face of international politics within fifty 
years. They are unifying mankind. As we read 
our morning newspapers, we feel the pulse beat of the 
world ; and it is one and the same. 

What is now so well known as international arbitra- 
tion is largely of American origin. It has hitherto 

1 De Jure Belli et Pads, 3 : 20, 46. 



346 PERMANENT COURTS OF 

consisted of proceedings before tribunals organized to 
settle a controversy after it has arisen. Over a hun- 
dred matters of difference between nations have been 
thus adjusted during the nineteenth century, each of 
which might otherwise have been an occasion of war. 
We have been parties to so many of these hearings 
that we are in a position to judge with some degree 
of assurance as to their merits and their defects. 
Both are great. No arbitration agreement, made 
after a particular matter of dispute has arisen, can be 
drawn quite as unreservedly in the interests of justice 
as one made before. The mere words used to state 
the question give an opportunity for equivocation. 
In the selection of arbitrators each party is certain 
to favor those whom it may think most likely to con- 
cur in its own views. In the choice of the place for 
the hearing there will be some thought of the state of 
public sentiment there, in circles into which the 
arbitrators may be thrown. On the other hand, the 
best men to decide a question of compensation 
for property unjustly seized might not be the best 
to pass upon a disputed boundary, nor at all fit to 
decide upon such a matter as the proper limits of the 
right of search, or the true meaning of some expres- 
sion in a treaty. 

A permanent international court would have 
several obvious advantages over any board of arbitra- 
tion, so constituted for a single occasion. 

As it would precede, so it would tend to prevent the 
occurrence, of any serious controversy. The knowl- 
edge of each party to the treaty, by which it was 



INTERNATIONAL ARBITRATION 347 

established, that it was in existence and would have 
jurisdiction to settle the dispute, if it were not settled 
by the nations concerned, for themselves, would be a 
strong incentive toward a voluntary adjustment. 

In the absence of such a court there would be 
always a right to reject any offer of arbitration ; and 
it would be a right often exercised, particularly by 
the party in the wrong. And even if there were a 
treaty providing for the reference of any controversies 
that might arise to arbitrators to be chosen for the 
purpose, it would be a far less manifest breach of 
duty to refuse to join in selecting arbitrators, or to 
postpone action in that direction until it became too 
late to avoid a conflict of arms, than it would be to 
refuse to respect the summons of a tribunal already 
constituted for the disposition of precisely such a 
case. 

There was a treaty between Prussia and Denmark, 
in 1863, which provided for the settlement by arbi- 
tration of such disputes as might arise between those 
powers. One did arise in relation to the Schleswig- 
Holstein succession, but Prussia found war more to 
her purpose than arbitration. War followed, and the 
weaker power lost everything that was at stake. 

Permanent judges would also have a position enti- 
tling their decisions to far more respect than that 
likely to be accorded to any temporary arbitrators. 
There would be a certain unity to their mode of pro- 
cedure, a certain consistency in their application of 
legal principles. They would be driven by the 
strongest motives of ambition as well as of duty to 
give the closest study and attention to whatever came 



348 PERMANENT COURTS OF 

before them, and to set forth the reasons of their 
judgments in a way to carry conviction at least to 
unprejudiced minds. They must thus gradually de- 
velop a true system of international jurisprudence, 
each rule of which would rest upon the general 
approval of civilized nations ; for without that no 
rule they framed could have any enduring vitality. 

Will the time ever come when it w^ill be possible to 
establish such a tribunal? I believe that it has come, 
so far as Great Britain and the United States are 
concerned. 

The project of constituting an international court 
with jurisdiction of differences between all the great 
powers of Europe received the countenance of Leib- 
nitz, Kant, Lamartine, and Bentham; but no great 
and general revolution in methods of government has 
ever been accomplished in a sudden way. Mankind 
advances only step by step, and irregularly at that. 
The successful experiment in politics is that which is 
made under the most favorable conditions. The wel- 
fare of the race is too deeply concerned in any attempt 
to substitute judicial decision for military power in 
international disputes, to justify taking any risk not 
absolutely necessary. 

The courts of England and the United States 
already occupy, in respect to almost all matters of 
municipal and of private international law, the same 
positions. As was said by the Supreme Court of 
Errors of Connecticut, in a recent decision,^ which 
affirmed the conclusiveness in an American court of 

1 Fisher v. Fielding, vol. 67, Connecticut Law Reports, 91. 



INTERNATIONAL ARBITRATION 349 

a judgment against an American, fairly obtained in 
an English court: — 

" They are engaged in administering the same system of 
jurisprudence, and are bound together by common institu- 
tions and modes of thought, no less than by sharing the 
same language and the same history." 

The forms of judicial procedure now in use at 
Chicago are more like those of England in the sev- 
enteenth century than those that are at present 
followed at London ; and on the other hand, the 
simplification of legal pleadings which now obtains in 
the English courts had an American origin. The 
decisions of English courts and the works of English 
jurists are constantly cited as authorities before our 
tribunals, and similar respect is paid by their judges 
to the opinions of Marshall, Story, and Kent. 

In both countries, also, the general attitude of the 
people towards the judicial tribunals is the same. 
They recognize and confide in them as courts of 
their own making, and their best defences against 
any act of executive or legislative injustice. They 
are prepared in advance to acquiesce in the decisions 
of those of last resort, and to believe that they are 
such as law and right demand. For nearly three 
generations these two nations have been at peace 
with each other, and engaged in the closest com- 
mercial intercourse, not only by sea, but across a 
frontier stretching for three thousand miles or more 
across the continent. No two powers in the world 
have ever before been in so fair a position to try this 
experiment of an international court. 



350 PERMANENT COURTS OF 

The Pan-American Congress, held at Washington 
in 1890, formulated a project for a general treaty of 
arbitration between all the repubhcs upon the West- 
ern continent. Its first article declared that arbitra- 
tion was adopted as a principle of American Inter- 
national Law, and it proceeded to make a resort to 
it compulsory as to every question of difference be- 
tween any of these powers, save such that the deci- 
sion, in the judgment of one of the parties involved, 
might imperil its independence. In that case arbi- 
tration was to be optional as to that party, but oblig- 
atory as to the other. The choice of arbitrators was 
to be made for each particular controversy as it might 
arise. Any nation in the world was to have the abso- 
lute right to become a party to the treaty, at any 
time, by simply signing a copy of it, and depositing 
this instrument with the government of the United 
States. 

This measure was obviously ill-considered and pre- 
mature. It failed to receive the approval of any of 
the republics in the Congress, and has been laid upon 
the shelf as another example of the folly of endeav- 
oring to bring different forms of civilization, and dif- 
ferent types of national character, into permanent 
political union, upon an equal footing. 

While this Congress was in session, the Congress 
of the United States, by concurrent resolution, re- 
quested the President " to invite from time to time, 
as fit occasions may arise, negotiations with any gov- 
ernment with which the United States has or may 
have diplomatic relations, to the end that any differ- 



INTERNATIONAL ARBITRATION 351 

ences or disputes arising between the two govern- 
ments which cannot be adjusted by diplomatic agency 
may be referred to arbitration, and be peaceably 
adjusted by such means." 

Three years later, the British House of Commons 
passed a resolution declaring its sympathy with the 
purpose of this overture, and its hope that it might 
be accepted by Great Britain. The Olney-Pauncefote 
treaty followed in 1896. As compared with the pre- 
tentious generalizations of the Pan-American project, 
it shows the difference between political speculation 
and practical statesmanship. Its failure, from the 
action of our Senate, is of less significance in the his- 
tory of nations than the fact that the executive powers 
of both nations were able to agree upon it. 

Had it stated in terms what perhaps may be read 
between the lines, that a court of permanent judges 
was contemplated, its fate might possibly have been 
different, for many of the objections urged against the 
scheme of procedure would then have fallen to the 
ground. Had it gone farther and provided for a 
court all whose judges should be either English or 
Americans, one vital amendment upon which the 
Senate insisted would certainly have been avoided. 

There were obvious reasons for questioning the 
wisdom of resorting to a foreign sovereign for the 
appointment of an umpire. He would certainly not 
select either a subject of Great Britain or a citizen of 
the United States, and the umpire would therefore be 
one trained under different legal and political institu- 
tions, and out of tune, so to speak, with his fellow 
judges in respect to habits of weighing evidence and 



352 PERMx\NENT COURTS OF 

determining methods of procedure. It is to be 
regretted that the framers of the treaty did not rely 
exclusively, as a means of securing impartial judg- 
ments, on the plan of which they made so large and 
wise a use, that of requiring on matters of grave 
importance the concurrence of more than a majority, 
say five-sixths, of the members of the tribunal. 

Were such a court of arbitration to be constituted, 
under an appropriate treaty, once for all, to decide 
future controversies as they might arise, there would 
be good reason to expect that unanimity in rulings 
upon minor matters would generally be attained, and 
to hope that the required majority would often con- 
cur in a final award. 

I venture to add these further suggestions, as con- 
tributions to a working plan. 

The presiding judge, under these circumstances, 
might be chosen from among themselves by the 
members of the court, either for a term of years or 
for life, and, should they be unable to agree, might 
be appointed by lot from the two having the most 
votes. He should have in all matters of procedure 
two votes, in case of a tie, as is the common practice 
in ordinary courts of justice. His successor should 
be selected in like manner, but from the other nation. 

The number of judges ought to be about ten or 
twelve. With so large a number it would be less apt 
to divide on national lines, and their oath of office 
should bind them to act without favor or partiality. 
Every judge should be commissioned by his govern- 
ment for a term of not less than ten years, and per- 



INTERNATIONAL ARBITRATION 353 

haps better for life, but should be removable by the 
Executive, on the address of two-thirds of each house 
of the national legislature. 

Among the American judges there should always 
be two Justices of the Supreme Court of the United 
States, and two of the English judges should, in hke 
manner, be taken from the High Court of Justice of 
England. A larger number could hardly be spared 
from either bench during the months which might be 
occupied by an international trial. 

It would tend to give dignity to the court, if, so far 
as there were any vacancies to fill, every ex-President 
of the United States and every ex-Lord High Chan- 
cellor of England were ex officio a member of it, so 
long as he occupied no other public office. While 
such a provision would bring a certain political ele- 
ment into the composition of the tribunal, the emi- 
nence of the men and their more than national 
reputation could hardly fail to strengthen public 
confidence in the ability of the court to deal with 
the largest questions of State. The remaining mem- 
bers it would probably be safer to select from those 
in each country already holding some judicial office. 
Great Britain could thus resort, if she pleased, to 
Scotland, Ireland, Canada, or Australia, while the 
United States could choose either from the Circuit 
or District Judges or the State judiciary. 

There would, undoubtedly, be many questions that 
might come before the court upon which the judg- 
ment of an experienced diplomatist, a professor of 
international law, or a great geographer might be 
worth more than that of those who had had only a 

23 



354 PERMANENT COURTS OF 

legal and judicial training. But the English and 
American people are accustomed to see their judges 
decide controversies of every nature, and have found 
that they are generally competent for the task. No 
questions of an international character could be pre- 
sented more difficult or more important than those 
passed upon by the Supreme Court of the United 
States in respect to the right of President Lincoln to 
proclaim a blockade of the Southern ports in 1861/ or 
that disposed of by the English Court of Criminal 
Appeal in determining the distance from its shores 
within which it could exercise criminal jurisdiction 
over those on board a foreign ship.^ 

Trials should take place, unless the court otherwise 
ordered, in the country against which its jurisdiction 
was invoked, following the maxim, " Actor sequitur 
forum ret." If the matter were one submitted by the 
joint action of both countries, the hearing should be 
had, in the absence of an agreement between them, 
wherever the court might direct. 

All cases heard should be made the subject of a 
brief official report, published under the direction of 
the court in such a form as to be one of a series of 
similar reports, uniform in style and character. This 
series should be, in its general features, similar to the 
sets of reports of cases decided in courts of last resort 
in England and the United States, with which the bar 
and bench of each country are familiar. The genius 
of Anglo-American jurisprudence is respect for pre- 

1 Prize Cases, 2 Black's Reports, 635. 

2 Regina v. Keyn, 13 Cox Cr. Cases, 403 ; Law Reports, 2 Exch. 
Div. 63. 



INTERNATIONAL ARBITRATION 355 

cedent, and every volume of the description indi- 
cated would furnish it new standing ground of that 
description. 

The universal science of international law would be 
an immense gainer by the growth of such a body of 
orderly jurisprudence, proceeding from the applica- 
tion of its own principles by trained judges acting 
with the weight of public authority. For the expres- 
sion of that common consent of civilized nations 
upon which the science has been built up, the world 
has thus far been forced to look to the treatises of 
jurists, and official documents put forth by particular 
nations for particular purposes and for their own pur- 
poses. A set of international law reports of a judicial 
character, if at all worthy of the place it filled, though 
the product of but two nations, could hardly fail, in 
course of time, to receive general acceptance and to 
be quoted as of universal authority. 

The ordinary court of justice prevents more law- 
suits than it decides. Those who know that if they 
engage in controversy, its determination will belong 
to another, proceeding under judicial authority, are 
apt to prefer an amicable settlement. An interna- 
tional court of standing jurisdiction, before which 
either of the powers for which it acts can always 
summon the other, must, as has been already said, 
have in some degree a like deterring effect. We may 
be sure that all the arts and arguments of diplomacy 
would be exhausted before any question in dispute 
was submitted to it for final adjudication. 

It is doubtless true that cases would occur in which 



356 PERMANENT COURTS OF 

anything approaching unanimity in the conclusions 
of such a tribunal could hardly be anticipated. Espe- 
cially would this be so, when the experiment was first 
on trial, and there were no precedents of their own 
making, to which the attention of the judges could be 
turned. But they would still have filled an important 
function. " The law's delays " would have been 
attained. The nations at difTerence would have 
accustomed themselves to the thought that their dis- 
pute was to be peacefully adjusted. Any outbreak of 
a war spirit, incident to the original wrong or misun- 
derstanding, would have spent its force, and the way 
would be smoothed towards a diplomatic settlement. 

Had Spain responded favorably to the overtures 
of the United States in 1890, and a general treaty of 
arbitration then been concluded, providing for such 
a court as has been the subject of consideration, the 
events of 1898 must have taken a very different 
shape. The question of responsibility for the de- 
struction of the Maine, so far as it might turn on the 
exercise of due diligence by the Spanish authorities 
in protecting the ship of a friendly power, would 
probably have fallen within the stipulated jurisdiction 
of such a tribunal. If there was room for a differ- 
ence of opinion upon this point, long diplomatic 
negotiations would have followed, and however it 
might have been determined, the principal contro- 
versy, under those circumstances, could have had 
comparatively slight effect in fanning the flames of 
war. 

The incidents of the Cuban revolution of 1895-8 



INTERNATIONAL ARBITRATION 357 

show also the necessary limitations of all arbitration 
procedure between independent nations. Questions 
of national policy and national morals must be 
decided in other ways. Perhaps they indicate with 
equal force that the time is yet far distant when any 
permanent court of international arbitration could be 
wisely established between powers so far apart in 
their modes of thought and standards of conduct, 
and so impeded by differences of language and laws 
from coming to a common understanding on any 
point, as Spain and the United States. Courts can 
seldom do complete justice between parties who are 
not accustomed to the same general course of legal 
procedure. 

In stating the subject of this chapter I have not 
hesitated to employ a term which, of late years, has 
been often used, though it is certainly subject to 
grave objections of form. It may be truly said 
that to call any tribunal of the character which has 
been sketched a court of arbitration is a misnomer, 
since it is of the essence of arbitration that it rest 
on a voluntary agreement. The objection is tech- 
nically sound; but what better name can be sug- 
gested ? We are attempting to describe a new agency 
of government, and it is not surprising that we find 
no terms of usage exactly fitted to the occasion. It 
is not, in strictness, a court, for every true court has 
inherent power to enforce its own decrees. It is not, 
in strictness, a board of arbitration, because, once 
established, either of the nations from whose joint 
action it derives its powers, becomes, so far as treaty 



358 INTERNATIONAL ARBITRATION 

obligations can avail, subject to its jurisdiction. 
Under these circumstances, while it must be con- 
ceded that, taking words in their accepted significa- 
tion, there is no such thing as compulsory arbitration, 
it is no less true that there are no known terms that 
come nearer to the expression of this new idea than 
those that make up the phrase Permanent Court of 
International Arbitration. It is permanent as distin- 
guished from a tribunal ad hoc. It is a court as dis- 
tinguished from a board of arbitrators proceeding by 
their own sense of what is reasonable and fair. It is 
international, so far as two nations are concerned. It 
is a proceeding of arbitration, in so far as it can re- 
sult in no judgment which the judges who render it 
can enforce. 



CHAPTER XIII 

THE MONROE DOCTRINE IN 1 898 

ONE of the weakest of American Presidents will 
be among those who are longest remembered 
in the history of the world. A few words in the 
annual presidential message sent to Congress in 1823, 
written by John Quincy Adams, the Secretary of 
State, and inspired by George Canning, the British 
Secretary of Foreign Affairs, have linked the name 
of President Monroe forever to what has become 
one of the fundamental rules of American public 
law. 

A strong man who finds himself in a company 
which but for himself is composed wholly of children, 
has a certain responsibility, from the mere fact of 
their presence. Should their safety be menaced, they 
would naturally look to him for protection. In some- 
what this position the United States found them- 
selves in the first quarter of this century. They 
were the leading power on the American continent. 
Greater powers had had territorial possessions here, 
but only one of them continued to retain them. 
Revolutions had wrested those of the others from 
their hands, and at the same time and by the same 
cause there had been changes in the form of govern- 



I 



360 THE MONROE DOCTRINE IN 1898 

ment. Royal authority had given place to repub- 
lican institutions. The interests of the Roman 
Catholic church had suffered by these occurrences. 
They tended to weaken the foundations of monarchi- 
cal institutions throughout the world. It was a time 
when matters of sentiment exerted a particularly 
strong influence in public affairs. Napoleon had 
recognized this force in politics, and had used it 
with skill. Upon his fall, the Czar of Russia, a 
mystic in religion, had brought all the powers of 
Europe except Great Britain, Turkey, and the Pope 
of Rome, to unite in a solemn covenant that in 
dealing with their subjects and with other nations 
alike, they would be governed by the rules of Chris- 
tian justice and charity. This agreement, knitting 
so many great nations together into " the Holy Alli- 
ance," lent new weight to the position of Spain in 
South America. In 1822 the United States had 
recognized the independence of her revolted colo- 
nies there. Were she to attempt to reduce them 
to subjection again, and receive in this the aid of 
the Holy AlHance, success in South America might 
well lead her to think of reasserting some of her 
ancient rights in North America. 

The Monroe doctrine, as originally promulgated, 
had immediate reference to this condition of things, 
and this alone. But it does not follow that it means 
no more now. Every doctrine of public law which 
has any vitality in it is subject to the law of growth. 
The United States were a third-rate power in 1823. 
They are one of the great powers of the world in 
1898. The other American States meanwhile have 



THE MONROE DOCTRINE IN 1898 361 

gained little in importance. They are feeble repub- 
lics, and we are a strong one. 

Europe has always recognized the right of her 
great powers to intervene in any controversy between ly 
other States, or in other States, for the protection 
of those interests which are common to all. Their 
primacy in the " European concert " is acknowledged. 
A narrower right of intervention is conceded by the 
principles of international law to every nation in the 
affairs of any other, when their course is such as 
vitally to endanger the tranquillity or prosperity of 
the intervening power. 

Whatever rights of either of these descriptions 
belong to one or all of the powers of Europe in 
respect to what passes on that continent, may fairly 
be claimed by the United States in respect to what 
passes on this hemisphere. Our Federal union is 
a stronger bond of connection than any European 
concert can be between independent States. Peace, 
under our republican institutions, imposing on us, 
as our Constitution does, serious obstacles to wag- 
ing effective war, can be best secured by the 
absence from this continent of any monarchical 
powers. 

Great Britain, since the Monroe doctrine was 
formulated, has become substantially a republic, and 
Canada has a form of government differing little 
from our own. If we have anything to fear from 
the influence of monarchical institutions, it will come 
from the lands that lie south of us. 



362 THE MONROE DOCTRINE IN 1898 

At the time when the Monroe doctrine was an- 
nounced, a proposition was made for the convoca- 
tion of a Pan-American Congress to construct a 
continental system. Colombia and Chili had already 
acceded to it. Clay was its foremost advocate in 
the United States. Jefferson gave it his countenance. 
" Our first and fundamental maxim," he wrote when 
consulted by President Monroe as to the propriety 
of following the suggestion of Canning, " should 
be, never to entangle ourselves in the broils of 
Europe. Our second never to suffer Europe to 
intermeddle with cisatlantic affairs. America, North 
and South, has certain interests distinct from those 
of Europe, and peculiarly her own. She should 
therefore have a system of her own, separate and 
apart from that of Europe. While the last is labor- 
ing to become the domicile of despotism, our en- 
deavors should surely be to make our hemisphere 
that of freedom." 

The Congress was called to meet at Panama early 
in 1826. The United States sent delegates to repre- 
sent them, but it had adjourned before their arrival, 
and though the adjournment was intended to be 
a temporary one, it proved to be final. It had, how- 
ever, by putting upon its programme, as a subject 
for deliberation, the emancipation of Cuba from 
Spanish control, stiffened the attitude of our govern- 
ment in relation to it so far that Clay, now Secretary 
of State, wrote, in 1825, to our minister at St. Peters- 
burg, that we would not permit Cuba to pass from 
the hands of Spain into those of any other Euro- 
pean power. And why not.? Simply because, in 



THE MONROE DOCTRINE IN 1898 363 

the language of Monroe's message, we should con- 
sider any attempt of such a power to extend its 
system of government " to any portion of this hemi- 
sphere as dangerous to our peace and safety." 

Forty years later, Austria and France undertook to 
set up an empire in Mexico. We affected, until the 
civil war was over, to believe that they were simply 
endeavoring to collect from Mexico certain claims for 
injuries to their subjects which they believed to be 
justly due ; but as soon as our own affairs were com- 
posed, we assumed a different tone, and, under the 
stress of the Monroe doctrine, Maximilian's forces 
were withdrawn and he came to his end. 

Thirty years more passed, and then we found 
another European power setting up pretensions to 
sovereignty over a large area of territory which the 
maps of the world gave to Venezuela. These two 
countries had come to a point in their controversy 
when their diplomatic relations had been broken off. 
There was no one at London to represent the interests 
of Venezuela at the foreign office. The Monroe doc- 
trine seemed to President Cleveland to require him to 
proffer the mediation of the United States, and his 
action, as to matters of substance at least, was well 
received by the country as a whole. No better proof 
can be asked than the almost unanimous action taken 
upon his recommendation by a Congress controlled 
by a political party to which he did not belong. 
Territorial encroachments by a European power on 
an American republic, by the right of the stronger, 
without a declaration of war, violate the Monroe doc- 
trine as much as if they were effected by military 



364 THE MONROE DOCTRINE IN 1898 

conquest. If sufficiently extensive, they might de- 
stroy the independence of the weaker power; and 
whether great or small, they tend directly, if not re- 
sisted, to degrade its character and with it that of 
republican government. 

There were grave objections of form to the terms 
in which the dissatisfaction of the United States was 
expressed in the earlier State papers of the Venezue- 
lan controversy ; but the spirit of the Monroe doc- 
trine, as that doctrine in course of time had come to 
be generally understood, here and abroad, was, it 
seems to me, a full justification for the American 
position. 

Our immense increase in territory, wealth, and 
population since 1823 has not only given us new 
weight in American politics, but greater responsi- 
bilities to our weaker neighbors. More than ever 
since the Pan-American Congress of Washington 
have they looked upon us as holding, in some sort, 
an American protectorate. The Monroe doctrine, in 
its original terms, was couched in phrases of diplo- 
matic reserve. And what was thus reserved? I should 
y say the right of emphasizing our position as the 
natural guardian of republican institutions then or 
thereafter existing on this continent or on the islands 
in either ocean whose control may nearly affect our 
interests, as far and as fast as circumstances would 
admit. 

The " London Spectator " said, in 1896, that " thirty 
or fifty years hence Europe, pressed almost to mad- 
ness by inability to feed overcrowded peoples, will 



THE MONROE DOCTRINE IN 1898 365 

want to swarm into South America under its own 
flags. To deny them will mean attempting to crush 
the combined fleets and armies of Europe." 

The Monroe doctrine has come to assume propor- 
tions that make it impossible that anticipations like 
those of the " Spectator " can ever be fulfilled ; and it 
is quite as well that the world should know it. The 
Venezuelan incident was the occasion of official 
action on the part of the United States that will 
never be retraced, for it voiced (though perhaps in 
too brusque a way ) the general sentiment of the 
American people. " Nothing succeeds like success." 
If the course of President Cleveland in that matter 
did not command universal approval in 1896, its 
results have secured it in 1898. 

It is too early to pronounce as to what will be the 
final verdict of the world on the special message of 
President McKinley, as to intervention in Cuban 
affairs, sent in on April nth, 1898, and the action 
which it led Congress to take. Not the least sig- 
nificant feature of that message was the absence of 
any allusion to the collective note of the great powers, 
addressed to him a few days before, in which they 
made a " pressing appeal " for the maintenance of 
peace. The reception of that note, and the reply 
which was given to it, certainly cannot be fairly con- 
sidered as in any way in derogation of the Monroe 
doctrine. That, as we originally stated and have 
always maintained it, protests against European in- 
terposition in American aff"airs for the purpose of 
controlling the destiny of any government which we 



366 THE MONROE DOCTRINE IN 1898 

have recognized as free and independent, or of estab- 
lishing any colony on either of our continents. It 
coupled with this, however, when first announced, 
the statement that " with the existing colonies or 
dependencies of any European power we have not 
interfered and shall not interfere." 

The powers were fully warranted by this avowal 
in taking the action now in question. Nor if the 
expression of our intention not to interfere with exist- 
ing European colonies in America can be regarded 
as the legal consideration, so to speak, of our demand 
that no more of them should be planted in the future, 
could that expression have been understood to qualify 
our right to complain of any wrong which might be 
thereafter done to us or to the people of neighboring 
countries, and to take such action in regard to it as 
might be justified by the general rules of international 
law. 

Indeed, in regard to Cuban insurrections and Cuban 
misrule, we had, more than twenty years before, 
taken the initiative ourselves in procuring a friendly 
representation to Spain on the part of the same 
powers, in support of our views of the necessity of 
an immediate pacification of the island.-' The pro- 
priety of this action on our part was challenged in 
some quarters, and our Department of State took 
occasion to vindicate it in a despatch to our minis- 
ter at Berlin, in 1876. " The expression to Spain," 
wrote Mr. Fish, then our Secretary of State, ** by the 
United States, in connection with other powers, of a 
desire that the civil war in Cuba should be brought 
1 Wharton's International Law Digest, § 60, pp. 403, 409. 



THE MONROE DOCTRINE IN 1898 367 

to a close, without, however, taking any decided steps 
of interference, it being understood that the United 
States * neither sought nor desired any physical force 
or pressure, but simply the moral influence of con- 
currence of opinion as to the protraction of the con- 
test,' is not inconsistent with the traditions of the 
United States." ^ 

The only difference between the concerted repre- 
sentation to Spain procured by us under President 
Grant's administration, and the concerted representa- 
tion to us made by the same powers (with the addi- 
tion of Austria-Hungary) under President McKinley's 
administration, was that the latter action took the 
shape of a collective note, and the former that of 
separate despatches. This made the action taken 
more impressive, and to that extent added to its 
weight, but it did not vary its essential character. 
Indeed the studied moderation of the note may fairly 
be considered to strengthen any claims we have or 
may have to influence the general course of Ameri- 
can government. 

1 Wharton's International Law Digest, § 60, p. 410. 



Index 



Absolutism, political, 80; follows 
centralization, 85 ; in the U. S., 
83, 84, 1 1 2 ; in Russia, 84 ; execu- 
tive, 80; fruit of Collectivism, 
113; a necessity in republics, 
116; in modern business, 218. 

Academic degrees, 196-198. 

Act, and intent, 270. 

Adams, John, 241. 

, John Quincy, 359. 

Administration, judicial, 257. 

Administrative functions, 198, 214, 
257. 

Admiralty, jurisdiction, 250, 251. 

Advocates, 322. 

Africa, 229. 

African Company, 166, 168, 176. 

Agency, a gratuitous contract, 322. 

Agricultural Bank, 202. 

Aktiengesellschaft, 208. 

Alexander Severus, 152. 

Allegiance, right to transfer, 43, 
241. 

Altruism, 320, 341. 

Amendments, constitutional, how 
made, 45-47 ; to State Constitu- 
tions, 45, SI. 

to United States Constitu- 
tion, possible range of, 81 ; pro- 
posed, 21, 327, 328, note; proc- 
lamation of, 114; first, 21; first 
ten, 41, no; fifth, 117, 137; 
eleventh, no; twelfth, no; 
thirteenth, iii; fourteenth, 65, 

111, 1X2, 113, 115; fifteenth, in, 

112, 115. 



American Bar Association, reso- 
lutions as to habitual criminals, 
299. 

Americans, national type, 240; a 
composite race, 240, 264. 

Amicable Insurance Co., 171. 

Anarchy, 116. 

Anglo-Saxons, 2S6. 

Annapolis, charter, 184. 

Anthropology, criminal, 290. 

Anthropometry, 291. 

Antiquity, reverence for, 288. 

Apollonius, 153. 

Appeals, in criminal proceedings, 
138. 

Apprentices, 176, note, 190. 

Aragon, justiciary of, 30. 

Arbitration, international, 345- 
358 ; beginnings of, 345 ; want 
of sanction, 345 ; limitations of 
subjects, 357 ; as to parties, 357 ; 
procedure in, 346; selection of 
arbitrators, 346; recommended 
by Pan-American Congress, 
350; overture from the United 
States, 350, 351 ; permanent 
courts of, 346-358 ; between 
England and the United States, 
348-354; permanent judges, 
351 ; procedure, 352-355. 

Aristotle, 108. 

Arnold, Matthew, 341. 

Arts, improvements in, 216. 

Aryans, 240. 

Asia, 229. 

Assassination, 109. 



24 



;7o 



INDEX 



Assault, 278. 

Associations, unincorporated, 145, 
146; English, 170, 187; French, 
181 ; of workingmen, 230. 

Associative spirit, 220; a necessity 
of modern life, 221-224 ; a source 
of corporate life, 222. 

Attorney-General, 318. 

Australia, experiments in legisla- 
tion, 194; legislative salaries, 
335 i political characteristics, 
336- 

Australian ballot, 28. 

Austria, policy towards corpora- 
tions, 210; municipal govern- 
ment in, 214. 

Austrian Bank, 170. 

Backus, Isaac, 20. 

Bacon, Lord, on antiquity, 288 ; 
criminal procedure, 123-125; 
revenge, 278. 

Bahamas, 335. 

Balance of power, 31. 

Ballot, Australian, 28; English, 
27, 71; Roman, 28; extension 
of, 27, 28; numbering, 71. 

Baltimore, Lord, 184. 

Banks, incorporated, 191 ; earliest, 
170; State, 54; free, 195, 196; 
Defoe's plan, 171; land banks, 
171, 185; American, constitu- 
tional restrictions, 67, 200; Eng- 
lish, 200, 205 ; Brazilian, 208 ; 
English joint-stock, 202; Irish, 
201 ; national, in United States, 
199 ; Bank of Amsterdam, 170, 
note ; of England, 170 ; of Ire- 
land, 201 ; of the Manhattan 
Co., 189 ; of North America, 188 ; 
of Scotland, 170 ; of St. George, 
170; of the United States, 96, 
97, 188 ; of Venice, 170. 

Bar, work in developing law, 260, 
261 ; American, 260. 



Barbarians, former use of term, 
341 ; mediaeval codes, 160. 

Baring Brothers, 237. 

Bathurst, Lord, 190. 

Bazin, 334. 

Beavers, 190. 

Beccaria, 264. 

Belcher, Governor, 187. 

Belgium, incorporation laws, 207 ; 
legislative salaries, 32S ; social- 
ism in, 213; criminal procedure 
in, 307, 309. 

Benefit societies, 213, 231. 

Berlin, 227. 

Bertillon system, 291, 300, 306, 
309-311. 

Bill of Rights, American, 40. 

Biology, law of, 26S, 296. 

Blockade of i86i by U. S., 354. 

Body, human, 291. 

Borgeaud, on American Constitu- 
tions, 48. 

Bracton, 118. 

Bram's Case, 126. 

Brazil, free incorporation law, 207. 

Brewer, Mr. Justice, 138. 

Bristol, 166. 

British Linen Company, 206. 

Britton, on torture, 118. 

Brotherhood of St. Thomas 
Becket, 165. 

Brown, Mr. Justice, 249. 

Brown University, 184. 

Bubble Act, 178, 187, 200. 

Burgundy, 165. 

Burlingame treaty, 66. 

Burr, Aaron, 92, 189. 

Cabinet, President's, 32, 88. 

California, anti-Chinese laws, 65 ; 
taxation in, 68. 

Canada, general incorporation 
law, 210 ; power of Governor- 
General, 63 ; legislative salaries, 
335- 



INDEX 



371 



Canals, 191, 213. 
Canning, George, 359. 
Capital, altruistic use of, 320; 
Collectivism as to, 237 ; com- 
bination with labor, 217, 229: 
of fraternal societies, 220, 231 ; 
these discourage individual ac- 
cumulation, 231, 232; pressure 
for investment, 170, 200. 
Capital crimes, 242. 
Capitalists, among workingmen, 
231, 232; leaning towards cor- 
porations, 218. 
Carlyle, on heroes, 34 ; on national 

history, 42. 
Carnot, President, 10, 11. 
Carolina Charter, 167, 168. 
Castellum, 1 59, note. 
Castrum, 159, note. 
Cato, 145. 
Caucus, 38. 

Charitable, bequests, 274, 316, 
320; gifts, 320; corporations, 
206. 
Charles I., 285. 

Charters, as contracts, 121; colo- 
nial, 166, 167, 169, 185 ; proposed 
revocation, 169; monopolistic, 
169; municipal, 212; royal, 185, 
202; special, 146, 150, 193, 224, 
227. 
Chartists, 330. 
Chinese labor, 65. 
Christian Church, at first un- 
favorable to patriotism, 13 ; 
position as affected by the Ref- 
ormation, 342; alliance with 
the State, 15. 
Christian Republic of Europe, 342. 
Christianity, catholicity of, 15; 
altruistic, 320 ; its international 
influences, 343. 
Church, ancient functions, 21 ; in- 
terpretation of Pentateuch, 283 ; 
confiscation of property by 



Henry VIII., 173; libraries, 24; 
registers, 24 ; support of morals, 
24. 
Church and State, ancient union, 

15; separation of, 15, 16, 246. 
Church of England, 19. 
Cicero, 147, 240. 
Cincinnati, 240. 

Cities, decay of power in middle 
ages, 164; early charters, 160, 
note ; growth of, 35, 294 ; in the 
United States, 293 ; dangers 
from, 293, 294; modern func- 
tions, 213; trade-city, 162. 
Citizens, of the United States, 
253 ; of the State, 65, 253 ; cor- 
porations as, 65 ; rights against 
State, 247. 
City- State, 141. 

Civil Law, as to corporations, 
145-158 ; as to partnerships, iSi. 
Civil Procedure, 247. 
Civil Rights Bill, 76. 
Civil Service Examinations, 39. 
Civil War, American, results, 50. 
Civilization, altruistic, 320; irregu- 
lar advance, 348. 
Class, criminal, 292, 293 ; distinc- 
tions of, 26; of wage earners, 
232 ; political aims, 212. 
Clay, Henry, 362. 
Clergy, American, favor religious 

liberty, 19. 
Cleveland, President, 105. 
Clodian law, 148. 
Code pleading, 57, 247. 
Codes, Austrian, 280; barbarian, 
160; Louisiana, 297; of inter- 
national law, 43 ; of Napoleon, 
207, 280, 281 ; Theodosian, 154, 
note. 
Codification, 256, 257. 
Coke, Sir Edward, 118, 206. 
Colbert, 168, 179. 
Coleridge, S. T., 113. 



372 



INDEX 



Collectivism, gain of, 113, 114. 
237 ; Roman, 142. 

College, Stephen, 243. 

Colleges, colonial charters, 185; 
degrees from, 196-198 ; incorpo- 
ration under general laws, 196. 

Collegium, 145, 151, 157- 

Cologne, 158. 

Colombia, 258, 335, note. 

Colonia, 158, 159, note. 

Colonial government, charters, 
166, 169, 184; early, 263; in 
New England, 8. 

Columbia College, 185. 

Combinations, of labor, 220; of 
labor and capital, 217. 

Comes civitatis, 160. 

Comity, 307. 

Commerce, 164, 234. 

Common Recovery, 269. 

Communaute, 161. 

Commtme, 214. 

Compagnie, 182. 

Companies Act, 205, 225. 

Company, joint-stock, 154, 164; 
"regulated," 164, 166, note; 
trading, 165, 169. 

Competition, 164, 233. 

Compte en participation, 182. 

ConciliabuUmi, 159, note. 

Confederate States of America, 

90, 95- 

Confessions, extorting, 118, 125; 
extra-judicial, 125, 126. 

Congress, Continental, 325 ; of the 
United States, 326-328. 

Connecticut, admission of inter- 
ested witnesses, 249 ; colonial 
charters by, 184, note, 185 ; 
colonial Constitution, 48, 258; 
corporations in, 226; taxation 
of, 236, note ; delegates to Con- 
tinental Congress, 325; first 
State Constitution, 46; copied 
largely from that of Mississippi, 



47 ; initiates the referendum, 47 ; 
parole of prisoners, 301, note; 
referendmn in, 260. 

Conservatism, 286. 

Constitution of the United States, 
first ten amendments, 41 ; last 
five amendments, no, iii; re- 
made by XlVth Amendment, 
113; unwillingness to alter, 328, 
note. See "Amendments, Con- 
stitutional." 

Constitutional Conventions, 47, 
259; national, 82; of United 
States in 1787, 10, 18. 

Constitutional law, 31, loi, 252, 
257, 258. 

Constitutions, executive construc- 
tion of, loi, 252, 253, 257, 258; 
expansion by necessity, 93 ; his- 
torical development of, 87, 120 ; 
judicial construction of, 31 ; 
proper scope, 78 ; State, changes 
in, 45, 51 ; State, general incor- 
poration laws, 199; State, modes 
of change, 47 ; State, popular 
ratification of, 46; style and 
form, 37, 75 ; written, 30. 

Consuls of trading companies, 166, 
note. 

Contempt of court, 56. 

Continental Congress, 325. 

Contracts, obligation of, 121, 253; 
liability to make, 248. 

Convention, constitutional, 47, 259. 

Convention of 1787, 10, 18; de- 
bates on the executive, Z"], 88; 
debates on legislative salaries, 
325, 326; debates on chartering 
corporations, 188. 

Convicts, police supervision of, 
301-306; paroles to, 299; recidi- 
vists, 297, 298. 

Co-operative associations, 209, 
226, 233. 

Copernican system, 283, 342. 



INDEX 



373 



Coroners' inquests, 270, 274. 

Corporations, municipal, Ameri- 
can and English laws of, com- 
pared, 211, 212; general incor- 
poration laws, 198-200, 210-212; 
German conception, 162; home 
rule in, 142, 158, 214; in Ameri- 
can colonies, 184 ; in dark ages, 
159; mayor, 85, 160; origin, 34, 
35, 141; personality, 142; politi- 
cal control, 212; powers, 73, 
211; Roman, 157, 158; State 
supervision, 214. 

, private, American and Eng- 
lish laws of, contrasted, 206, 207, 
251, 252 ; American legislation 
as to, 63, 64; as masters, 229; 
by-laws, 165 ; cumulative vote, 
70; Dartmouth College Case, 
121, 253; directors of, 173, 219, 
251 ; distrust of, m 18th century, 
190 ; failures and re-organiza- 
tions, 228; fictitious capitaliza- 
tion, 68; general incorporation 
laws, 64, 146, 150, 173, 183, 193- 
198, 200-207, 220, 225, 248; his- 
tory in England, 170, 173, 175, 
200-207 ) history in Germany, 
208, 209; history in France, 179- 
183 ; history in modern Europe, 
170, 192, 207; history in Rome, 
141, 145, 155; history in United 
States, 63, 184-189, 193-198; 
how far citizens, 65 ; individual 
liability, 157, 204; influence on 
legislation, 64; legislative con- 
trol of, 65 ; limitations of power, 
196; moneyed, essential ele- 
ments, 173 ; personality, 142, 
143, 206 ; relations to socialism, 
236-238 ; results of, 225 ; taxa- 
tion, 234; trust-fund doctrine, 
252 ; unity of management, 217 ; 
watered stock, 64, 176. 

Corporation Act, English, 19. 



Corpus, 143, 154, 164, 233. 

Countess of Shrewsbury's Case, 
119, 123, 124. 

Courts, American canons of deci- 
sion, 251 ; resemblance to Eng- 
lish, 348 ; as interpreters of 
Constitutions, 258 ; constitu- 
tional functions, 30 ; despatch 
of business in, 56; inherent 
powers, 357 ; international, 346, 
357; jury trials, 249; legal fic- 
tions in, 268-289; litigation 
with foreigners, 357 ; local, 262 ; 
popular regard for, 349 ; pre- 
ventive effect, 355; respect to 
precedent, 250 ; respect to truth, 
283 ; sanction of decisions, 344. 

Coxe, Brinton, 31. 

Crime, as a profession, 294; 
causes, 290 ; decline in Eng- 
land, 305. 

Criminal anthropology, 290; per- 
sonal responsibility for crime, 

314- 

Criminal law, English, 278. 

Criminal procedure, allowing de- 
fendant to testify, 127 ; his 
cross-examination, 129; Ameri- 
can system, 242; appeals, 138, 
244; extenuating circumstances, 
280; Austrian, 280; Bavarian, 
132; Beccaria's influence, 264 ; 
Bertillon system, 291, 300, 306, 
309, 311; branding, 281, note; 
British, 132, 243, 295, 299, 304, 
305 ; conclusive proof demand- 
ed, 131 ; defence of insanity, 
270, 277-282 ; discretion of trial 
judge, 278; early modes, 296; 
exemption of accused from ex- 
amination, 117, 123, 134, 243; ex 
post facto laws, 246, 253; favor- 
ing the accused, 129, 130; fine, 
296; French, 134, 280, 303 ; func- 
tions of committing magistrate. 



374 



INDEX 



124, 133; habitual criminals, 
290; legislation needed, 136; 
life sentences, 297, 312; parole 
system, 298 ; penitentiaries, 242 ; 
pleadings, 130 ; probationers, 
242, 306; public prosecutors, 
133, 244, 247 ; Sir Johir Jervis' 
Act, 123; ticket of leave, 299; 
torture, 121, 132, 135; uncertain- 
ties of -American, 130; use of 
jury in, 132 ; whipping, 296. 

Criminals, habitual, 290-315; po- 
lice supervision of, 301-306, 313 ; 
registration of, 301, 309, 310. 

Cuba, 357, 362, 365, 366. 

Cummings v. Missouri, 253. 

Cumulative vote, 70. 

Cuq, on Roman Institutions, 142. 

Currency, colonial, 187 ; paper, 185. 

D'Aguesseau, 286. 
Darien, Scotch settlement of, 177. 
Dartmouth College, 185. 
Dartmouth College Case, 121, 

253- 

Davis, Jefferson, 95. 

Death, civil action for causing, 66. 

Debtors, laws to favor, 73; im- 
prisonment of, 248. 

Debts, collection of, 73. 

Declaration of Independence, 241. 

Deeds, record of, 247, 262 ; disen- 
tailing, 269. 

De Foe, 168, 171. 

Degradation, civic, 307. 

Degrees, academic, 196-198. 

Denmark, salaried legislatures, 
330; treaty with Prussia, 347. 

Departments of government, 
three, 31, 322; executive func- 
tions, 87, 88 ; judicial functions, 
198, 257 ; legislative functions, 
49, 55 ; administrative functions, 
198, 214. 

Despotism, in democracies, 109. 



De Tocqueville, views on taxation, 
234; views on judicial power, 
257; views on official salaries, 
331- 

Diploma, college, 198. 

Diplomacy, modern methods, 345. 

Directors, of corporations, 219. 

Disestablishment, church, 17. 

Disfranchisement, 306, 307. 

Divorce, restrictive laws, 75 ; atti- 
tude of church, 254; at Rome, 
254 ; procedure in, 255. 

Domicile, registry of, 303 ; as a test 
of jurisdiction, 255. 

Dorr's Rebellion, 91. 

Duane, Wm. J., 115. 

Duelling, 71. 

Durham, bishop of, 211 ; Univer- 
sity of, 197. 

East India Company, English, 
166, 168; Dutch, 167, 193, note ; 
French, 168. 

Eastland Company, 166. 

Education, anciently in charge of 
church, 21 ; assumed by the 
State, 22, 72; rehgious, 23; im- 
portance attached to in colonial 
period, 53 ; in Southern States, 
72 ; influence, internationally, 

345- 
Egypt, tradesmen in, 145, 150. 
Eighteenth century, remoteness 

. of. 83- 

Elections, corruption in, 62 ; cu- 
mulative voting, 70 ; canvass of, 
71 ; popular, 80. 

Elective franchise, extension of, 
25, 26 ; duty to use, 244 ; for- 
feiture of, 306, 307. 

Electors, presidential, 85, 106, 107. 

Elizabethan age, 263. 

Eminent domain, 196. 

England, cash system of trade, 
233 J changes in legal proced- 



INDEX 



375 



ure, 349; decline of monarchy 
in, 88 ; fall of rents, 232 ; his- 
tory of private corporations in, 
170, 173, 175; American invest- 
ments in, 227 ; now a republic, 
107, 243 ; protection of charities, 
318; the commonwealth, 340; 
trades unions in, 231. See 
" House of Commons," " House 
of Lords." 

Entails, breaking, 269. 

Epicurean philosophy, 232. 

Equal rights, 221. 

Equity, place in history, 267 ; pro- 
cedure, 57. 

European concert, 361. 

Evidence, artificial rules of, 131 ; 
preponderance of, 131. 

Evolution of institutions, 14. 

Examination of criminals, 117,128. 

Exchange, stock, 169. 

Exchequer bills, 171. 

Executive, compensation of, 322 ; 
personal dignity, 33; term of 
office, 55. 

Executive councils, 50, 88. 

Executive power, checks in mon- 
archies, 31 ; increase in our 
States, 55 ; its real nature, 87, 
88 ; laws unexecuted by, 98 ; 
strength in republics, 31. 

Executor, 317. 

Exemptions from execution, 73. 

Expatriation, voluntary, 43, 241. 

Ex post facto law, 253. 

Extradition of criminals, 312. 

Factory, trading, 163; De Foe's 
project, 171. 

Falcidian part, 272, 273, 274, 317. 

Familia, 143, 144, 147, 155. 

Family, Roman, 142, 144, 234 ; in- 
fluence in American colonies, 53. 

Farmers of the revenue, Roman, 
' I47> 154. 



Federalist, The, 86, 89. 

Feltmakers, company of, 190. 

Felton's Case, 122. 

Feudalism, decay of, 164. 

Fiction, legal, defined, 2S6 ; deca- 
dence of, 266 ; modern use, 266- 
289; nature, 267 ; origin, 266. 

Field, David Dudley, 43, 248. 

Finances, public, 54. 

Finch's discourse on law, 120. 

Fish, Hamilton, 366. 

Fisher v. Fielding , 349. 

Fletcher v. Peck, 252. 

Force, governmental, 341, 344. 

Foreign judgment, 348. 

Foreigners, 341, 343, 357. 

Fortescue, on judicial torture, 122. 

Forum, 159, note. 

France, influence on modern gov- 
ernment, 9 ; influence on Ameri- 
can thought, 264 ; Parliaments of 
Justice, 98 ; the States-General 
in 1789, 9, 10 ; the National 
Assembly, 10, 331 ; the revolu- 
tion, II, 83, 109, 162; religious 
liberty in, 21 ; first Constitution, 
29; Constitution of 1848,330; 
of 1851, 331 ; trade guilds, 161, 
162 ; history of corporations in, 
179-183, 226; criminal codes, 
280, 281, 303, 307 ; socialism in, 
213; the Commune, 214; trades 
unions in, 220, 231 ; State aid 
to co-operative production, 233 ; 
taxation in, 234 ; constitutional 
revision in, 259 ; registration in, 
303 ; protection of charities, 
318 ; salaried legislature, 330. 

Franchise, elective, 306, 307 ; par- 
liamentary, 332 ; corporate, 186, 
207. 

Franklin, Benjamin, 241, 321 ; his 
junto, 149; French ideas, 264. 

Fraternities, religious, 160; Ro- 
man, 142; within a corpora- 



376 



INDEX 



tion, i86; of wage earners, 221 ; 
mismanagement of, 232. 

Freedmen, suffrage for, 26; ap- 
prentice laws, 26. 

Frith-guild, 161. 

Gabinian law, 28. 

Gambling Act, 179. 

Garfield, assassination of, 1 10. 

Gavelkind, 273. 

Gellius, Aulus, 159, note. 

Genesse Chief, The, 251. 

Genossenschaften, 209. 

George I., 340. 

George II., 179. 

George III., 285. 

Georgia, constitutional changes in, 
11- 

Germans, ancient, 159, 259; in 
United States, 240. 

Germany, free incorporation laws, 
208, 209, 226 ; attract English 
capital, 227; journalism in, 38; 
socialism in, 333 ; State social- 
ism in, 25 ; the Reichstag, 333 ; 
trades unions in, 220. 

Gerry, Elbridge, 326. 

Gladstone, 28. 

God, ancient conception of, 342. 

Goethe, on women, 27. 

Government, ancient, its aims, 14 ; 
modern, began when, 6; its 
aims, 14; share of people in, 
345; mutability of principles, 
337; revolutions of form, 340; 
of methods, 348 ; sources of, 266. 

Governor, State, term of office, 
49. 55; veto power, 31, 55, 85; 
increase of power, 55 ; pardon- 
ing power, 85. 

Grand jury, 56, 198, note. 

Granger Cases, 65. 

Grapeshot, Case of the, 103. 

Gratuities, public, 62. 

Great Britain, insecurity of prop- 



erty in, 40; now a democracy, 
83, 361 ; responsible ministry in, 
97 ; corporations in, 200-207, 
225; labor associations in, 231 ; 
treaty of arbitration with, 348. 
See " England " and " House of 
Commons." 

Grotius, 343, 345. 

Guilds, Roman, 143, 150; medise- 
val, 160, 161 ; merchant, 161. 

Habeas corpus, suspension in Unit- 
ed States, 92, 95. 

Habitual criminals, 290-315. 

Hamburg, 162, note ; Bank of, 170. 

Hamburgh Company, 165, note. 

Hamilton, Alexander, 189. 

Hand in Hand Insurance Co., 171. 

Hanoverian dynasty, 340. 

Hanseatic league, 163. 

Harvard College, 184. 

Hatting trade, 190. 

Hawaii, free incorporation law, 
210. 

Hayburn's Case, 31. 

Heineccius, 149. 

Heirs, cutting off by will, 316; 
legal protection of, 271, 272, 273, 
274, 288 ; primogeniture, 262. 

Hempstead, charter, 184, note. 

Henry III., 161. 

Henry IV. of France, 342. 

Henry VIII., 173. 

Hero worship, 33. 

Holland, influence on American 
law, 239. 

Holmes, Oliver Wendell, 261. 

Holy Alliance, The, 360. 

Home Rule, 35, 142. 

Homicide, 139, 277, 280-282. 

Honor, protection of, 277. 

Hospitals, charitable, 174. 

House of Commons, power of, 32 ; 
pay of members, 323-325, 329- 
333> 340 j powers of members, 



INDEX 



377 



324 ; functions of members, 324 ; 

landed interest in, 324; changes 

in composition, 332. 
House of Lords, abolition of, 27 ; 

attendance in, 334. 
Hudson, Henry, 167. 
Hudson's Bay Company, 166, 168, 

175- 
Hume, 191. 
Hungary, free incorporation law, 

210. 
Husband and wife, 254. 

Ideas of '89, 14, 29, 40, 42. 

Identification, personal, 291. 

Illinois, voting in, 29, 70. 

Imprisonment, for debt, 73 ; for 
crime, 242, 296. 

Incorporation, under general laws, 
64, 199, 248. 

India, Empress of, 83. 

Indies, French Company of the, 
180. 

Individual, rights of, 40, 41 ; 
merger in corporations, 221, 237. 

Individualism, effect of business 
corporations on, 237 ; effect of 
labor organizations on, 231, 
232; French philosophy of, 13; 
in religious opinion, 17 ; loss of, 
113, 114. 

Infamy, 277, 306, 307. 

Insanity, as a defence in criminal 
cases, 270, 277-282; as a legal 
fiction, 270-284; in suicides, 
274-277; in testators, 271. 

Inscriptions, Roman, 153. 

Insolvent debtors, 248. 

International Law, beginnings of, 
343, 345 ; source and sanction, 
343 ; part of municipal law, 343 ; 
American, 350; courts of arbi- 
tration between nations, 355. 

Inter-State Commerce Act, 137. 

Intervention, right of interna- 



tional, 361 ; by the United 
States in Cuban affairs, 365. 

Iowa, general incorporation laws, 
200. 

Institutes of Justinian, 154. 

Institutions, their characteristics, 
2, 4, 82 ; legal, Taylor's defini- 
tion, 3 ; modern political, begin- 
ning of, I ; list of, 3 ; growth of, 
82; sentimental causes, 221, 
224; national differences, 337, 
338. 

Insurance, companies, 170, 191, 
196 ; taxation, 235 ; by Hud- 
son's Bay Co., 176, note; com- 
pulsory, 25 ; benefit societies, 
213, 231 ; endowment, 176, note ; 
wagering, 178. 

Intent, 270. 

Ireland, results of the Union, 83 ; 
parliamentary delegation, 332, 

333- _ 

Irish, in the United States, 240. 

Italians, New Orleans massacre, 
244. 

Italy, free incorporation law, 210, 
227 ; trades unions in, 231 ; 
criminal punishments, 307 ; leg- 
islature, 334. 

Jackson, President, 99; foreign 
policy, 94 ; struggle with United 
States Bank, 96, 97 ; views of 
executive power, loi. 

Jail, made too attractive, 313. 

Japan, constitution of, 42 ; educa- 
tion in, 22 ; its political charac- 
teristics, 336; trades unionsj 
220. 

Jardine, on torture, 122. 

Jefferson, epitaph, 24; French 
ideas, 29, 264 ; influence in edu- 
cation, 23 ; influence in Virginia 
legislation, 17 ; Louisiana pur- 
chase, 96 ; on the Monroe Doc- 



378 



INDEX 



trine, 362 ; views on expatriation, 
241 ; views of power of Presi- 
dent, 86, 99. 

Jeffreys, Chief Justice, 119. 

Johnson, President, 99, loi ; im- 
peachment of, 100, 115, 339. 

Joint-Stock Companies Registra- 
tion Act, 201, 203. 

Joint-stock company, defined, 
154, 164; beginnings of, 168; 
English laws as to, 203 ; limited 
liability in England, 204 ; in 
Germany, 209; consequences of 
failure, 227. 

Journalism, influence on govern- 
ment, 37. 

Judex, 160. 

Judges, election, 50, 59 ; legisla- 
tive appointment, 57 ; functions 
in jury trials, 249; in will cases, 
318 ; salaries, 323 ; of interna- 
tional courts, 352, 353. 

Judgment, foreign, 348. 

Judiciary, interpreters of Consti- 
tutions, 30, 252, 258; judge- 
made law, 257 ; powers of, 257 ; 
elective, 50, 59, 250; term of 
oiiice, 55; of the United States, 
85; British, 132; executive pro- 
tection of, 104 ; supervision of 
corporate organizations, 198. 

Julius Csesar, 148, 152. 

Jurisdiction, admiralty, 251 ; in 
divorce suits, 255. 

Jurisprudence, definition, 257 ; 
Roman definition, 246 ; univer- 
sal principles, 341 ; American, 
239, 257 ; its development, 260 
263 ; a gauge of civilization, 239; 
leading decisions, 252, 253 ; out- 
worn, 269 ; international, 347. 

Jury, trial by, 56 ; issues before, 
279 ; decadence of, 250 ; una- 
nimity, 56 ; continental system, 
279 ; American changes in trial 



by, 249 ; restricting powers of 

judge, 249; prosecutions for 

libel, 245. 
Justice, natural, 253 ; through law, 

282. 
Justinian, Institutes, 154. 

Kent, custom of, 273. 

King, can do no wrong, 267, 285; 

appointments of, 322. 
King, Rufus, 188. 
Knights Templar, 160. 
Kommanditgesellschaften atif Ak- 

Hen, 208. 
Kreisordnimg, 210. 

Labor, individual skill now unim 
portant, 217; organized, 213 
217, 229, 231, 232 ; political rep- 
resentation, 332 ; protection of, 
15; relations to capital, 217 
Roman guilds, 143. 

Land, modes of transfer, 269 
registry of titles, 247. 

Land Banks, English, 171 ; in 
Connecticut, 185. 

Landgemeineordmuig, 210, note. 

Lanuvium, inscription, 151, note. 

Latin, use in middle ages, 263. 

Lauvergne, 292, 297. 

Law, becoming institutional, 121 ; 
customary, 287, 2S8, 344; devel- 
opment of, 120, 260, 261, 266, 
267 ; ex post facto, 253 ; general 
and equal, 221 ; rests on con- 
sent, 344 ; sanction, 344 ; Stoic 
conception of, 282 ; unconstitu- 
tional, 99 ; unjust, 279 ; unsuited 
to the community, 277-279 ; 
when ancient and settled, 285, 
315. See " Criminal Procedure," 
" Constitutional Law," " Inter- 
national Law," " Roman Law." 

Law, John, 179. 

Law merchant, 219. 



INDEX 



379 



Lawyers, duty in argument of 
causes, 250 ; work in develop- 
ing law, 260, 261. 

Legal fiction, see " Fiction, 
legal." 

Legislation, American, 36, 337 ; 
effect on governments, 267 ; 
equality, 221 ; experiments in, 
194; growth in modern times, 
36 ; inconsiderate, 33 ; outside 
influence on, 337 ; progress in, 
287 ; relation to unwritten law, 
287 ; Roman, 46 ; special pro- 
hibited, 36, 57, 146, 200. 

Legislative department, Ameri- 
can checks on, 49, 53, 258 ; 
growing distrust of, 57, 224 ; in- 
herent limitations, 253; judicial 
powers, 55. 

Legislatures, appointment of 
members to office, 58; biennial 
sessions, 69; colonial in Amer- 
ica, 325 ; control by agricul- 
tural interest, 236; executive 
sessions, 37 ; favoritism in, 224 ; 
popular representation in, 224 ; 
position of members, 322 ; power 
in free governments, 337; pro- 
cedure in, 61, 62 ; rush of 
business in, 224; salaries for 
members, 69, 322-340. 

Leipsic, church services in, 16. 

Leon, charter of, 160, note. 

Levant Company, 166. 

Libel, 245. 

Liberty, civil, 248 ; how affected 
by war, 253; of contract, 248; 
restraint for criminals, 295 ; re- 
ligious, 15, 23. 

Libraries, public, 24. 

Lieber, Francis, 220. 

Life insurance, early English, 176, 
note ; gambling in, 1 78. 

Limited companies, 205, 209, 218. 

Lincoln, President, 92, 93, 99. 



Liquor-selling, prohibition of, 75. 

Literature, early colonial, 263; 
mediseval, 263; Revolutionary 
era, 264. 

Liverpool Insurance Co., 202. 

Livingston, Edward, 297. 

Loan Association v. Topeka, 253. 

Loans, public, 62. 

Lobbying, 63. 

Local Government Act, 211. 

Lombroso, 290. 

London, trade of, 165; livery 
companies, 162; guild-hall, 162; 
penny post, 168; water supply, 
171 ; banking in, 202, 205. 

Lotteries, 71. 

Louis, Saint, 275. 

Louis XIII., 168, 343. 

Louis Napoleon, 331. 

Louisiana, purchase of, 96 ; repu- 
diation in, 74 ; penal code, 297, 
311; lotteries in, 71; undutiful 
wills, 317 ; Provisional Court 
in, 103 ; general incorporation 
laws, 199. 

Loyalty, 13. 

Luther, 342. 

Lynch law, 136, 139, 244, 302. 

Lyons, 158, 229. 

Macaulay, T. B., 93. 

Machiavelli, 345. 

Machinery, political conse- 
quences, 216. 

Madison, views on religious lib- 
erty, 16; on executive power, 
88, loi ; as to corporations, 188. 

Magister, 147, 154. 

Magna Charta, 14, 1 18. 

Maine, criminal punishments in, 
298. 

, Sir H. S., 89, 266, 269. 

, The, 356. 

Maisons de Dteu, 174. 

Majorities, influence of party 



38o 



INDEX 



nominations on, 39 ; tyranny of, 

33- 

Man, brotherhood of, 341, 345; 

classes of mankind, 292 ; duties 
of, 320 ; evolution of, 292 ; rights 
of, 40; The Forgotten, 130. 

Manchester, 211, 213, note, 229. 

Manhattan Company, 189. 

Manslaughter, 281, note. 

Manufactures, household, 216; 
in American colonies, 190 ; 
modern characteristics, 217 ; 
public aid for, 213; overproduc- 
tion, 229. 

Marbury v. Madison, 31, 252. 

Marcus Aurelius, 34, 149. 

Marine Hospital Fund, 25. 

Marriage as a sacrament, 284; 
divorce, 254. 

Married women, 254. 

Marshall, Chief Justice, 92, 121, 
251. 252, 253. 

Martial law, 92. 

Maryland, colonial charters in, 
184 ; early constitutional amend- 
ments, in, 47. 

Marx, Karl, 238. 

Mason, Jeremiah, 241. 

Massachusetts, Constitution of 
1780, 46, 51 ; forfeiture of char- 
ter, 184, note ; patent, 166 ; pro- 
bation system, 305 ; veto power 
in, 32 ; early incorporations in, 

187- 
Maxims, political, 267. 
McCarthy, Justin, 330. 
McCuIloch, J. R., 218. 
McCurdy, Charles J., 249, note. 
McKinley, President, 95, 365. 
Mechanical inventions, 35. 
Merchant adventurers, 165, 167. 
Merchant guilds, 161. 
Merchants, London, 165. 
Mexico, legislative salaries, 335 ; 

Maximilian, 363. 



Michigan, free banking law, 195. 

Militia of United States, 90. 

Mill, J. S., on individualism, 14. 

Milligan's Case, 92, 253. 

MilUonnaires, 237, 238. 

Milton, on municipal government, 
214-216. 

Ministry, responsible, 32, 97, 267. 

Minority, protection of, 70. 

Minority representation, 29, 39; 
in England, 29 ; in Illinois, 29. 

Mississippi, attack on reconstruc- 
tion laws, 102. 

Mississippi Company, 180. 

Modern government, began when, 
6, 16; its aims, 14; first centen- 
ary of, 42 ; flexibility, 42 ; share 
of people in, 345. 

Modern society, preceded modern 
government, 6; Carnot's claim, 
12 ; influence of the Church, 

13- 

Mommsen, Th., 149, 158, 163. 

Monarchy, source of title, 341 ; 
hereditary succession, 108 ; de- 
cline of, 360 ; checks in, 31 ; in 
America, 361. 

Monasteries, suppression of, 173. 

Money, at Rome, 1 56. 

Monopoly, 161, 165; Parliamen- 
tary protest, 175. 

Monroe, President, 106, 359. 

Monroe doctrine, 105, 359-367 ; 
origin, 359; scope of, 368, 364; 
limits of, 366 ; its acceptance by 
the great powers, 363; the col- 
lective note of 1898, 365, 367; 
applied to Mexico, 105 ; applied 
to Venezuela, 105. 

Montesquieu, influence on mod- 
ern government, 9, 31 ; in the 
United States, 18, 264. 

Morellet, Abbe, 192. 

Municipal corporations, origin, 
34; Roman history, 157; home 



INDEX 



381 



rule in, 35, 158, 214; general 
incorporation laws, 198, 200, 
210-212; limitation on taxes, 
73; State supervision, 214; 
mayor's power, 85; American 
and English laws of, contrasted, 
211, 212; political control, 212. 

Municipal Corporations Act, Eng- 
lish, 27, 162. 

Municipal Corporations (Consoli- 
dation) Act, 211. 

Municipal Law, 344. See " Law." 

Mimicipium, 158, 159, note. 

Murder, 277, 280-282. 

Museums, public, 25. 

Napoleon, 277, 360. 

National Assembly, of France, 

no. 
Nations, originally unfriendly, 

343- 

Natural selection, 222. 

Navicularii, 156. 

Neagle's Case, 104. 

Nebraska, senatorial nominations 
in, 60. 

Negro, education, 72; suffrage, 
26, 50, 52, III, 112. 

A^emo tenetur,&lc., 122. 

Netherlands, English trade with, 
165. 

Netherlands Trading Company, 
193, note. 

Nevada, admission as a State, 
112. 

New Armsterdam, 167. 

New England, colonial trade in, 
190; farming in, 156; manu- 
factures, 190. 

New Hampshire, constitutional 
changes in, 20; constitutional 
ratification by people, 46; re- 
ligious tests in, 47, 70. 

New Jersey, criminal procedure 
in, 139 ; conservatism of, 139. 



New London Society United, etc., 
185. 

New Netherlands, 167. 

New Orleans, 244. 

New York, ballot in, 28; code 
pleading in, 247 ; general in- 
corporation laws, 194, 195; Re- 
vised Statutes, 256. 

New York City, 167, 184; bank- 
ing in, 189 ; foreign population, 
240 ; rogues' gallery in, 309 ; 
water supply, 189. 

New Zealand, legislative salaries, 
335. note. 

Newcastle, 211. 

Newspapers, 37. 

Nicholas I., 197. 

Niebuhr, view of Roman corpo- 
rations, 142. 

Nineteenth century, characteris- 
tics, 289 ; international arbitra- 
tion in, 346. 

Nominations, for office, 244, 107 ; 
laws to protect, 38, 244. 

Non-residents, suits against, 255. 

Normans, influence on English 
law, 273. 

North Carolina, charter, 166; vote 
on ratifying Constitution, 21 ; 
Reconstruction Constitution, 52. 

Northern & Central Bank, 202. 

Norway, salaried legislatures, 330. 

Novalis, 130. 

Novgorod, 163. 

Oath, decisory, 24S. 

Obligation of contracts, 253. 

Office, elective, 257 ; eligibility of 
women, 70 ; exclusion for crime, 
306 ; legislative appointments 
to, 54, 58, 59 ; motives for seek- 
ing, 336; removals from, 59,89; 
religious tests for, 19, 47, 70. 

Officers, appointment, 257 ; re- 
moval, 257. 



382 



INDEX 



Ohio, habitual criminal law, 298. 
Ohio Company, 188, note. 
One man power, 218. 
Oppidurn, 159, note. 
Ordinance of 1787, 78. 
Oriental governments, 42. 
Ortolan, on Roman law, 122. 

Panama Congress, 362. 

Pan-American Congress, of 1823, 
362; of 1890, 349. 

Panic, of 1836, 203; of 1837, 54. 

Papacy, 343. 

Pardoning power, 85 ; boards of 
pardons, 138. 

Paris, trade in, 161 ; registration 
of criminals in, 310; university 
of, 197. 

Parish, 160. 

Parks, 25. 

Parole to convicts, 298. 

Partnerships, Anglo-American 
conception of, 181 ; civil law 
conception of, 181 ; en com- 
mandite, 179, 208, 226; in Ger- 
many, 209; Irish Act of 1782, 
201; limited, 179; mining, 256; 
quasi-corporations, 170; yield- 
ing to corporations, 217. 

Party, conventions, 107, 244; gov- 
ernment, 38, 233, 244. 

Patents, colonial, 166, 167. 

Paterfa7?tilias, 144. 

Paternalism, 213. 

Patriotism, revival of, 12. 

Patterson, Wm., 139. 

Pawn-shops, public, 213. 

Payson, Phillips, 20. 

Penal codes, Alabama, 77 ; Aus- 
tria, 280; Belgium, 307; Eng- 
lish, 119, 278; France, 280, 281, 
303> 307 ; German, 307 ; Italian, 
307 ; Louisiana, 297, 311. 

Penn, Wm., 167, 168; heirs of, 
169. 



Pennsylvania, colonial charter, 
167 ; constitution of 1873, 57 ; 
general incorporation laws, 194; 
judicial decisions, 241; peni- 
tentiary system, 242 ; University 
of, 184. 

Penny-post, London, 168. 

People, The, as legislators, 259, 
260 ; of the United States, So, 
81,84, no. 

People's charter, 330. 

Perpetuities, 320. 

Physical force, inextinguishable, 
260. 

Pinckney, Charles, 18, 19, 86, loi, 
188. 

Plato, Republic of, 22, 87. 

Pleading, codes of, 57, 247 ; is- 
sues in, 279. 

Pliny, 153. 

Plymouth, colony of, 167. 

Police, supervision of criminals 

by, 303. 304. 30S, 313- 

Police power, of State, 262 ; of the 
United States, 104. 

Politics, experiments in, 348. 

Pomeroy, J. N., 135. 

Possession, adverse, 267 ; peace- 
able, 268. 

Precedents, judicial, 250, 270, 2S5 ; 
reversal of, 251. 

Prescription, 193, 267. 

President of the United States, an 
elective king, 88 ; compensation 
and appointments of, 322, 323 ; 
diplomatic powers, 90, 104; his 
veto, 98; impeachment of, 100, 
102; military power, 90-95; mode 
of election, 35, 85; powers, 84, 
109; quasi-judicial power, 103; 
refusal to execute laws, 99 ; rep- 
resents the people, 109 ; right of 
removal by, 89, 100 ; spokesman 
of the nation, 116; third term, 
1 10 ; vacancy in office, 108. 



INDEX 



383 



Presumption, of guilt, 295, 304; 
judicial, 267. 

Primaries, 38. 

Primogeniture, 262, 333. 

Princeton College, 184. 

Printing, effect of discovery of, 
263. 

Prisoners, aid societies, 302, 303 ; 
examination of, 125; number in 
United States, 313. 

Prisons, made too attractive, 313. 

Probation officer, 306. 

Procedure, civil, reform in, 247, 
26S, 283 ; criminal, see " Crimi- 
nal Procedure ; " English, 349 ; 
American, 349 ; law of evidence, 
24S ; legal fictions, 268-2S9. 

Process, imprisonment for debt, 
248 ; legal fictions in, 268. 

Progress, in jurisprudence, 287. 

Prohibition of liquor selling, 78. 

Property, constitutional guaran- 
ties, 39, 262 ; defence of, 277 ; 
private, foundation of, 267 ; 
State interference with, 262. 

Prussia, country communities, 
210; private corporations in, 
226; salaried legislatures, 330, 
note ; trades unions in, 231 ; 
treaty with Denmark, 347. 

Ptolemaic system, 283. 

Public, credit, loan of, 62 ; grants, 
revocation of, 252 ; inspection 
by, 247 ; law, development of, 
360 ; opinion, force of, 344, 
international, 344, 367 ; prose- 
cutors, 133, 247 ; schools, 22 ; 
supervision of private property, 
262 ; uses, 320. 

Puritanism, in New England, 8. 

Puritans, debt to Holland, 239 ; 
notion of religious liberty, 15, 16. 

QUASI-CORPORATIONS, 203, HOte. 

Queen's Proctor, 319. 



Railroads, regulation of charges 
on, 65, 262; taxation, 235; state 
regulation of, 262 ; free passes, 

334- 
Raleigh, Sir Walter, 166. 
Real estate, transfers of titles, 

247. 
Recidivists, 292, 315. 
Reconstruction laws, 52, 99. 
Record offices, 24, 247. 
Referendum, origin of, 48, 260 ; 

Swiss use of, 49. 
Reform bill, English, 83, 162, 211, 

243- 

Reformation, of criminals, 78 ; 
Protestant, 341, 342, 343. 

Regina v. Keyn, 354, note. 

Registration, public, 24; of indi- 
vidual citizens, 303. 

Religion, as a social force, 15. 

Religious, establishments, 19, 20, 
21; liberty, 15; test, 19; socie- 
ties, incorporated, 185. 

Reports, judicial, 250, 354. 

Republic of letters, 196, 345. 

Republics, executive power in, 31 ; 
weakness of, 30. 

Responsibility, for crime, 314; of 
British ministry, 32, 97, 267. 

Revenge, 278. 

Revenue, farmers of, 147, 154; 
raised from corporations, 234, 

235- 
Reverence, 33, 288. 
Revolution, American, influence 

on our literary ideas, 264. 
Rheims, 158. 
Rhode Island, toleration in, 15; 

constitutional law in, 31 ; first 

State Constitution, 46. 
Richelieu, 168. 
Right, as a governmental force, 

341. 
Rights, of the citizen, 247 ; equal, 
341 ; of individual against State, 



384 



INDEX 



247, 253; of man, 40; of State 
against individual, 247. 

Robertson, F. W., 7. 

Rogers, Thorold, 228. 

Rogues' Gallery, 304, 309. 

Roman Catholic Church, attitude 
tov»rards schools, 23; towards 
suicide, 276; before the Refor- 
mation, 342 ; canon law over- 
ruled by civil law, 246; ecu- 
menical councils, 343 ; marriage 
as a sacrament, 254; the Holy 
Alliance, 360 ; the papacy, 343 ; 
Vatican Council, 10. 

Roman Catholics, exclusion from 
oiifice, 15, 70. 

Roman law, as to undutiful wills, 
271, 272, 316; decisory oath, 
248 ; guilds, 143 ; in United 
States, 239; of corporations, 
141, 145-158; of divorce, 254; 
of libel, 245; of pleadings, 279; 
special legislation, 146; Twelve 
Tables, 143, 146, 245, 316. 

Rome, modern, 227 ; patriotism 
in, 12; source of the imperial 
power, 98; source of military 
power, 234 ; statute law in, 36. 
See " Roman Law." 

Ross, Senator, 339, note. 

Russia, absolutism in, 84; aboli- 
tion of serfdom, 93 ; despotism 
in, 109; mediEeval trade, 163; 
number of corporations, 226 ; 
policy towards corporations, 
210; the Holy Alliance, 360. 

Russian Company, 166. 

Rutgers College, 184. 



St. Mary's City, 184. 

Salaries, of executive officers, 322 ; 
of judicial, 323; of legislative, 
322-340; the fee system, 339; 
capitalists favor low, 340. 



Savigny, definition of corporation, 
206, note. 

Savings-banks, municipal, 213 ; 
taxation, 235. 

Schleswig-Holstein difficulty, 347. 

Schools, public, 72. 

Schouler, James, 60. 

Scotland, Act of Union, 177 ; trad- 
ing charters, 168, 177 ; criminal 
verdicts, 279. 

Secession, 52. 

Secretary of State, 114. 

Self-crimination, 137. 

Selfishness of governments, 130. 

Senators of United States, 60, 
338; their pay, 325-328. 

Senegal Company, 168. 

Sentiment, as a social force, 221, 
224 ; as a political force, 360. 

Sentimentalism, 130. 

Shaftesbury, Lord, 168. 

Sherman, Roger, 87. 

Shipowners, Roman, 148, note. 

Shipping, American capital in for- 
eign, 227. 

Sigonius, 159. 

Simian family, 292. 

Skeleton, human, 291. 

Slaughter House Cases, 253. 

Slavery, Lincoln's Emancipation 
proclamation, 93. 

Slaves, protection of f reedmen, r i r . 

Slave-trade, 43. 

Smith, Adam, influence on United 
States, 18 ; views on corpora- 
tions, 191, 195. 

Socialism, French philosophy of, 
13; State, 25, 237; political in- 
fluence, 212 ; its future, 238. 

Societas, 143 ; piiblica, 154. 

Socieii h responsabiliti limitee, 183, 
note. 

Societi ajtonyme, i8r, 201, 207, 226. 

Societi en covtmandite, 179, 226. 

Sociiti par actions, iSi. 



INDEX 



385 



Society, effect on government, 
266, 267. 

South America, relations of the 
United States to, 360; European 
colonization, 362, 364. 

South Sea Co., English, 177, 190; 
French, 180. 

Spain, free incorporation law, 210; 
in South America, 360; war 
with United States, 356. 

Spectator, London, 364. 

Spencer, Herbert, 240. 

Stael, Madame de, 276. 

State, relations to its citizens, 
247 ; loan of credit, 62 ; police 
power, 262 ; sovereignty, 253. 

State socialism, 25, 237. 

State and Church, 15; separa- 
tion, 16. 

States, of the United States, 80 ; 
relation to the United States, 
43, 80 ; constitutional changes 
in, 45 ; legislatures, 334. 

States-General of France, 10. 

Statutes, form, 337 ; unsettle law, 
236; codification of, 256, 257; 
colonial, 256; revisions, 256; 
obsolete, 271, 287 ; unjust, 271, 
279; repeal, 287. See " Legisla- 
tion." 

Stock Exchange, 169. 

Stock-jobbing, 168, 178. 

Stoic philosophy, 282. 

Store, department, 163. 

Story, Mr. Justice, 251. 

Succession, to the dead, 287 ; 
intestate, 144; custom of Kent, 
273 ; to land, 269. 

Suffrage, early constitutional lim- 
itations, 47 ; broad, 25 ; univer- 
sal, 26; qualifications, 25, 26, 
47, 74; female, 27, 70; negro, 
26, 50, 52, 112; educational, 78, 
113 ; British, 27 : constitutional 
limitations in United States, 69. 



Suicide, 270, 274-277. 

Sumner, Wm. G., 129. 

Susquehannah Company, 188, 
note. 

Sweden, trading companies, 167; 
legislative salaries, 335. 

Switzerland, referendum in, 49, 
260; free incorporation law, 
210; criminal lav/s, 309; legis- 
lative salaries, 336. 



Tacitus, 259. 

Talleyrand, 345. 

Taney, chief-justice, 92 ; as secre- 
tary of the Treasury, 115. 

Tax payers, voting by, 74. 

Taxation, church exemptions, 24 ; 
constitutional provisions as to, 
68 ; of corporations, 234 ; may 
lead to extravagance, 235 j 
through municipalities, 234. 

Tenement houses, unsanitary, 213. 

Tennessee law, as to suicide, 275. 

Tenure of Office Act, 99, 100. 

Territories of United States, gov- 
ernment of, 199. 

Test, religious, 19. 

Test Act, English, 19. 

Teutons, 259. 

Texas, constitutional changes in, 
76. 

Theodosian Code, 154, note. 

Torture, in criminal cases, 118, 
121. 

Trade, American colonial, 190; 
guilds, 144; rapidity of modern, 
220; Roman, 144. 

Trade-city, 162. 

Trade union, how produced, 221 ; 
legalized, 200, 220, 231 ; na- 
tional, 199, 230; political ideas, 
214; political influence, 212. 

Trading companies, Dutch, 167 ; 
English, 162, 165-168 ; French, 



25 



386 



INDEX 



i68; Scotch, i68, 177; conflict- 
ing charters, 170; colonial, 186. 

Trajan, 153. 

Treaties, have force of law, in 
United States, 242 ; for arbitra- 
tion, 346, 347 ; permanent and 
continental, 350. 

Tredwell, Thomas, 41. 

Truth, in judicial proceedings, 283. 

Turgot, 320. 

Turkey company, 166, note. 

Umpire, 351. 

United Provinces, 215. 

United States, abrogation of Ar- 
ticles of Confederation, 12; ab- 
solutism in, 84 ; among the 
oldest of nations, 83 ; Articles 
of Confederation, 51 ; citizens 
of, 253 ; continental responsibili- 
ties, 359, 364 ; convention of 
17S7, 10; criminal statistics, 
313 ; early weakness of, 86 ; 
growth of, 360 ; increasing city 
population, 293 ; nationalization 
of, 113, 116; police power of, 
104; registration of criminals by, 
310; relation to the States, 43, 
80; reserved rights, in ; sover- 
eignty over States, 109, 112, 
114; the people of, 80, 81, 84, 
no. See "Amendments, con- 
stitutional," and "Constitu- 
tion." 

Universitas, 144. 

Universities, degrees from, 196- 
198 ; incorporation under gen- 
eral laws, 196; State, 23, 72. 

University of Virginia, 23, 24. 

Vatican Council, 10. 

Venezuela, 363, 366. 

Vermont, general incorporation 

laws, 195. 
Veto power, colonial, 31 ; Eng- 



lish, 97 ; in States and United 
States, 32, 85, 98 ; use by Presi- 
dent Jackson, 97. 

Vice-President of United States, 
108. 

Vicus, 159, note. 

Vienna, 170, 214. 

Virginia, charter, 166; criminal 
punishments, 297 ; delegates to 
Continental Congress, 325 ; re- 
ligious liberty in, 16. 

Virginia Company, 166, 167. 

Voting, ballot, 27, 28, 71 ; exclu- 
sion for crime, 306, 307. 

Wage earners, exemption from at- 
tachment, 73; mediaeval craft- 
guilds, 161. 

Wages, combinations to raise, 
213. 

Waltzing, on Roman Corpora- 
tions, 155. 

War, constitutional impediments 
in United States, 361 ; effect of 
international arbitration courts, 
355 ; effect on individual libei^ty, 
253 ; progress towards extinc- 
tion, 343 ; social effects, 50 ; 
Spanish of 1898, 356; super- 
sedes courts, 103 ; suspension 
of habeas corpus, 92-95. 

Washington, George, Genet's re- 
call, 90 ; inaugural address, 44 ; 
influence on frame of Consti- 
tution, 106; influence on its 
ratification, 86, 336. 

Waterworks, city, 171, 192, 195. 

Wealth, influence in colonial poli- 
tics, 53; men of, in United 
States, 47. 

Webster, Daniel, 94. 

West India Company, Dutch, 167 ; 
French, 168 ; Swedish, 167. 

West Jersey, 168. 

Whipping-post, 296. 



INDEX 



387 



Wife, 253, 254. 

William and Mary College, 185. 

Wills, charitable bequests, 274 ; 
defence by State, 316, English 
statute of, 273; Falcidian part, 
272; hard, 271, 288; Roman, 
271,272 ; suits to construe, 318 ; 
undutiful, 271, 317. 

Wilson, James, on modern gov- 
ernment, 7. 

Wingate's "Maxims," 122, 123. 

Winthrop, Governor John, 166; 
Goverijior John, Jr., 48. 

Witchcraft, 34. 

Witness, confidential communica- 



tions, 56 ; decisory oath, 248 • 
interested, 126, 127, 248. 

Women, love of order, 27 ; eligi- 
bility to office, 70 ; suffrage for, 
27, 70 ; married, 253, 254. 

Words, want of apt, 357. 

Workingmen, Roman guilds, 143, 
150; trades unions, 200, 229- 
231 ; political influence, 233, 
332 ; national trade unions, 199 ; 
individual qualities, 217 ; right 
to combine, 220, 231 ; decline 
in small capitalists, 232. 

Yale College, 184, and note. 



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